EXHIBIT 10.2
CUSTODIAN AGREEMENT
among
GREATAMERICA LEASING CORPORATION,
as Custodian,
GREATAMERICA LEASING RECEIVABLES 2002-1, L.L.C.,
as Issuer,
and
JPMORGAN CHASE BANK,
as Indenture Trustee
Dated as of March 1, 2002
CUSTODIAN AGREEMENT
Custodian Agreement, dated as of March 1, 2002 (the "Custodian
Agreement") among GREATAMERICA LEASING CORPORATION, an Iowa corporation
("GreatAmerica"), GREATAMERICA LEASING RECEIVABLES 2002-1, L.L.C., a Delaware
limited liability company (the "Issuer") and JPMORGAN CHASE BANK, as Indenture
Trustee (the "Indenture Trustee").
WHEREAS, GreatAmerica, the Issuer and the Indenture Trustee have
entered into a Transfer and Servicing Agreement, dated as of the date hereof
(the "Agreement", the capitalized terms defined therein being used herein with
the same meaning as set forth therein or in the Indenture), dated as of the date
hereof, between the Issuer and the Indenture Trustee (the "Indenture"); and
WHEREAS, pursuant to the Agreement, GreatAmerica shall sell, transfer
and assign to the Issuer without recourse all of GreatAmerica's right, title and
interest in and to the Contract Assets, and pursuant to the Agreement, the
Issuer shall simultaneously sell, transfer and assign its right, title and
interest in and to the Pledged Assets to the Indenture Trustee; and
WHEREAS, in connection with such sales and the assignments, the
Agreement provides that the Indenture Trustee shall hold the Contract Files
directly or through a Custodian acting as agent of the Indenture Trustee under
the Custodian Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Appointment as Custodian; Acknowledgment of Receipt. Subject to the
terms and conditions hereof, the Indenture Trustee hereby revocably appoints
GreatAmerica, and GreatAmerica hereby accepts such appointment, to act as agent
of the Indenture Trustee as Custodian (the "Custodian") to maintain custody of
the Contract Files relating to the Contracts. In performing its duties
hereunder, the Custodian agrees to act with reasonable care, using that degree
of skill and attention that the Custodian exercises with respect to the contract
files relating to all comparable equipment contracts that the Custodian services
for itself or others. The Custodian hereby acknowledges receipt of the Contract
File for each Contract listed in the List of Contracts.
2. Maintenance at Office. The Custodian agrees to maintain each
Contract File at its offices as shall be specified to the Issuer and the
Indenture Trustee. The Custodian shall make available to the Issuer and the
Indenture Trustee or their respective duly authorized representatives, attorneys
or auditors a list of locations of the Contract Files and the related accounts,
records and computer systems maintained by the Custodian at such times as the
Issuer or the Indenture Trustee shall instruct.
3. Duties of Custodian.
(a) Safekeeping. The Custodian shall hold the Contract Files on behalf
of the Indenture Trustee and shall maintain such accurate and complete accounts,
records and computer systems pertaining to each Contract File as will comply
with the terms and conditions of the Agreement. The Custodian shall at all times
maintain the original of each fully executed Contract and store such original
Contract in a fireproof vault. Within 60 days of the Closing Date (or Subsequent
Transfer Date, as the case may be), the Custodian shall deliver an Officer's
Certificate to the Indenture Trustee certifying that as of a date no earlier
than the Closing Date (or Subsequent Transfer Date, as the case may be) it has
conducted an inventory of the Contract Files (which in the case of Substitute
Contracts, need be only of the Contract Files related to such Substitute
Contracts) and that there exists a Contract File for each Contract and stating
all exceptions to such statement, if any. The Custodian shall conduct, or cause
to be conducted, periodic (at least annually) physical inspections of the
Contract Files held by it under this Custodian Agreement, and of the related
accounts, records and computer systems, in such a manner as shall enable the
Issuer and the Indenture Trustee to verify the accuracy of the Custodian's
inventory and record keeping. The Custodian shall promptly report to the Issuer,
and the Indenture Trustee any failure on its part to hold the Contract Files and
maintain its accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such failure.
(b) Access to Records. Subject only to the Custodian's security
requirements applicable to its own employees having access to similar records
held by the Custodian, the Custodian shall permit the Indenture Trustee or its
duly authorized representatives, attorneys or auditors to inspect the Contract
Files and the related accounts, records and computer systems maintained by the
Custodian pursuant hereto at such times as the Indenture Trustee may reasonably
request. The Custodian shall implement or maintain policies and procedures in
writing and signed by a Servicing Officer with respect to persons authorized to
have access to the Contract Files on the Custodian's premises and with respect
to the receipting for Contract Files taken from their storage area by an
employee of the Custodian for purposes of servicing or any other purposes.
(c) Release of Documents. Upon instruction from the Indenture Trustee,
the Custodian shall release any Contract File to the Indenture Trustee, the
Indenture Trustee's agent, or the Indenture Trustee's designee, as the case may
be, at such place or places as the Indenture Trustee may designate, as soon as
practicable and upon the release and delivery of any such document in accordance
with the instructions of the Indenture Trustee, the Custodian shall be released
from any further liability and responsibilities under this Custodian Agreement
with respect to such documents unless and until such time as such document may
be returned to the Custodian.
(d) Reports. The Custodian shall assist the Indenture Trustee generally
in the preparation of routine reports to regulatory bodies, to the extent
necessitated by the Custodian's custody of the Contract Files.
(e) Maintaining the Issuer's Perfected Security Interest. The Custodian
will take all action necessary to maintain the perfection of the Indenture
Trustee's interest in the Contracts
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and the proceeds thereof. For all purposes of Article Four of the Agreement, the
Trustee shall be deemed to have possession of the Contract Files for purposes of
Section 9-305 of the Uniform Commercial Code of the State in which the Contract
Files are located.
4. Instructions; Authority to Act. The Custodian shall be deemed to
have received proper instructions with respect to the Contract Files upon its
receipt of written instructions signed by a Responsible Officer of the Indenture
Trustee. A certified copy of a bylaw or of a resolution of the Board of
Directors of the Indenture Trustee may be received and accepted by the Custodian
as conclusive evidence of the authority of any such officer to act and may be
considered as in full force and effect until receipt of written notice to the
contrary by the Indenture Trustee. Such instructions may be general or specific
in terms.
5. Indemnification by the Custodian. The Custodian agrees to indemnify
the Issuer and the Indenture Trustee and their officers, directors, agents and
employees for any and all liabilities, obligations, losses, damages, payments,
costs or expenses of any kind whatsoever, including, without limitation, fees
and expenses of counsel, that may be imposed on, incurred by or asserted against
the Issuer and the Indenture Trustee as the result of any act or omission in any
way relating to the maintenance and custody by the Custodian of the Contract
Files; provided, however, that the Custodian shall not be liable to the Issuer
or the Indenture Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Issuer or the Indenture
Trustee. This Section 5 shall survive the termination of the Custodian Agreement
and the earlier removal or resignation of the Indenture Trustee.
6. Advice of Counsel. The Custodian, the Issuer and the Indenture
Trustee further agree that the Custodian shall be entitled to rely and act upon
advice of counsel with respect to its performance hereunder and shall be without
liability for any action reasonably taken pursuant to such advice, provided that
such action is not in violation of applicable federal or state law.
7. Effective Period, Termination and Amendment and Interpretive and
Additional Provisions. This Custodian Agreement shall become effective as of the
Cutoff Date and shall continue in full force and effect until terminated
pursuant to this Section. If GreatAmerica shall resign as Servicer in accordance
with the provisions of the Agreement or if all of the rights and obligations of
their Servicer shall have been terminated under Article VIII of the Agreement,
the appointment of GreatAmerica as custodian shall be terminated by the
Indenture Trustee or by the Holders of Notes in the same manner as the Indenture
Trustee or such Holders may terminate the rights and obligations of the Servicer
under Article VIII of the Agreement. As soon as practicable after such
termination of such appointment, GreatAmerica shall deliver, at their expense,
the Contract Files to the Indenture Trustee or the Indenture Trustee's agent at
such place or places as the Indenture Trustee may reasonably designate
8. Governing Law. This Custodian Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
9. Notices. All demands, notices and communications hereunder shall be
in writing, personally delivered or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Custodian, at the following address: GreatAmerica Leasing
Corporation, 625 First Street, SE, Suite 800, Cedar Rapids, Iowa 52401,
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(b) in the case of the Indenture Trustee, at the following address: JPMorgan
Chase Bank, 450 West 33rd Street, 14th Floor, New York, New York 10001, and (c)
in the case of the Issuer, at the following address: GreatAmerica Leasing
Receivables 2002-1, L.L.C., 625 First Street, SE, Suite 601, Cedar Rapids, Iowa
52401, or at such other address as shall be designated by such party in a
written notice to the other party.
10. Binding Effect. This Custodian Agreement shall be binding upon and
shall inure to the benefit of the Issuer, the Indenture Trustee, the Custodian
and their respective successors and assigns.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Custodian Agreement to be executed in its name and on its behalf by a duly
authorized officer as of the day and year first above written.
GREATAMERICA LEASING CORPORATION,
as Custodian
By:
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Name:
Title:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
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Name:
Title:
GREATAMERICA LEASING RECEIVABLES
2002-1 L.L.C., as Issuer
By:
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Name:
Title: