Exhibit (j)
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (this "Agreement") is dated as of February 11,
2003 among WILTON FUNDING, LLC, a Delaware limited liability company with its
principal place of business in Nassau, Bahamas ("Borrower"), PATRIOT CAPITAL
FUNDING, INC., a Delaware corporation with its principal place of business at
Westport, Connecticut ("Servicer"), iSTAR FINANCIAL, INC., a Maryland
corporation with an address at 1114 Avenue of the Americas, New York, N.Y. 10036
("Lender"), and U.S. Bank NA, a national banking association with an office in
St. Xxxx, Minnesota ("Custodian").
AGREEMENT
A. Borrower and Lender have entered into a Credit Agreement dated
as of February 11, 2003 (as same may be amended or modified from time to time,
the "Credit Agreement"). Capitalized terms used but not defined herein shall
have the meaning given such terms in the Credit Agreement
B. Pursuant to the Credit Agreement, Lender may from time to time
extend to Borrower certain Loans to fund the acquisition or making of certain
Permitted Investments, which Loans will be secured by a pledge by Borrower in
favor of Lender of all such Permitted Investments together with all Loan Files
relating thereto.
C. Servicer is, among other things, originating certain of the
Permitted Investments and acting as servicer of the Permitted Customer Loans on
behalf and for the benefit of Borrower pursuant to a certain Servicing Agreement
of even date herewith by and between Borrower and Servicer (as same may be
modified or amended from time to time, the "Servicing Agreement").
D. Borrower has executed and delivered to Lender a Security
Agreement (as same may be modified or amended from time to time, the "Security
Agreement") granting Lender a security interest in, among other things, all
Permitted Investments, including all present and future Permitted Customer
Loans, Credit Files, Equity Documents, Security Documents and Other Credit File
Documents, as such terms are defined either below or in the Credit Agreement.
E. Custodian is willing to hold the Credit Files relating to the
Permitted Investments, including all Security Documents, Equity Documents and
Other Credit File Documents (collectively, the "Loan Collateral") as the
custodian for, and bailee of, Lender in accordance with the terms and conditions
of this Agreement to perfect the security interest of Lender in the Loan
Collateral in its possession from time to time, as well as to facilitate
administration of the Credit Files. Custodian is also willing to hold certain of
the Equity Documents, Security Documents and Other Credit File Documents as the
custodian and bailee for Lender with respect to collateral for the Permitted
Investments as to which Lender is perfecting its security interest by possession
and/or control (as such terms as defined in the UCC).
In consideration of the mutual undertakings herein expressed, the
parties hereto hereby agree as follows:
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1. DEFINITIONS. Whenever used herein, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which Custodian is authorized or obligated by law or executive order to be
closed.
Permitted Investment Closing Checklist: With respect to all Permitted
Investments, the Permitted Investment Closing Checklist completed by Borrower or
Servicer which shall identify the Permitted Investment(s) and list ail Security
Documents, Equity Documents and the material Other Credit File Documents with
respect to such Permitted Investment delivered or to be delivered to Custodian.
Equity Documents: Original counterparts of all instruments,
certificates, shares, warrants and other documents evidencing a Permitted
Customer Equity Investment or any other equity interest of Borrower in a Loan
Obligor or related party, including those as to which possession is the
exclusive or permitted method of perfection under the UCC.
Other Credit File Documents: Original counterparts of all
certifications, permits, approvals, opinions and other documentation with
respect to a Permitted Investment, other than the Permitted Investment itself,
Security Documents and Equity Documents.
Obligor Note: The promissory note or other evidence of the indebtedness
of an Loan Obligor to Borrower.
Credit File: As to each Permitted Investment, means the corresponding
Customer Credit Documentation File (as defined in the Credit Agreement),
including, without limitation, the documents or instruments specified in
Section 2 hereof.
Permitted Investment Schedule: Any schedule (substantially in the form
of Exhibit A attached hereto) from time to time delivered by Borrower to
Custodian and Lender.
Security Documents: Original counterparts of documents, security
agreements, pledge agreements, mortgages, deeds of trust, collateral
assignments, guaranties, financing statements and other loan documents that have
been or will be executed by or on behalf of any Loan Obligor or other Person to
guaranty or provide collateral security with respect to a Permitted Investment,
or otherwise creates, evidences or perfects a lien relating thereto, and all
replacements, substitutions, additions, amendments and modifications thereof.
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2. DELIVERY OF DOCUMENTS.
2.1 DELIVERIES REQUIRED UNDER CREDIT AGREEMENT. With respect
to each Permitted Investment made or acquired by Borrower, Borrower shall,
within 48 hours of making or acquiring such Permitted Investment, deliver to
Custodian or cause Servicer to deliver to Custodian on Borrower's behalf, the
Customer Credit File relating to such Permitted Investment together with a
Permitted Investment Closing Checklist detailing the specific documents included
in such delivery for each such Credit File, which shall include the documents
and instruments described below (each clearly identified on its face with the
Loan Obligor's name pertaining to each Permitted Investment identified in the
Permitted Investment Schedule).
(a) The original Obligor Note or notes, endorsed by Borrower
pursuant to an original allonge as follows:
"Pay to the order of iStar Financial, Inc., with
recourse.";
(b) An original counterpart of all Security Documents,
Equity Documents and Other Credit File Documents listed
on the Permitted Investment Closing Checklist with
respect to such Permitted Investment, all of which shall
be fully executed and properly acknowledged; and
(c) Such assignments of Security Documents, Equity Documents
and other Loan Documents as Borrower may be required to
execute and deliver under the Credit Agreement and
Security Agreement.
From time to time, Borrower shall forward to the Custodian a checklist
itemizing additional documentation, together with additional original documents
evidencing any assumption, modification, consolidation or extension of a
Permitted Investment received by Borrower, ail of which shall be held in the
Credit File for such Permitted Investment.
2.2 OTHER CREDIT FILE DOCUMENTS. From time to time, Borrower
may also deliver to Custodian Other Credit File Documents with respect to one or
more Permitted Investments evidencing any assumption, modification,
consolidation or extension of a Purchased Loan approved in accordance with the
terms of the Credit Agreement, and upon receipt of any such other documents, the
Custodian will hold such Other Credit File Documents, together with the related
Permitted Investment, in accordance with the terms of this Agreement. With
respect to any documents which have been delivered or are being delivered to
recording offices for recording and have not been returned to Borrower or
Servicer in time to permit their delivery hereunder at the time required, in
lieu of delivering such original documents, Borrower shall deliver or cause to
be delivered to Custodian a true copy thereof with an Officer's Certificate
certifying that such copy is a true, correct and complete copy of the original,
which has been transmitted for recordation. Borrower shall deliver or cause
Servicer to deliver such original documents to the Custodian promptly when they
are received by Borrower or Servicer.
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Any Credit File documents not delivered to Lender or its
designee (including the Custodian) are and shall be held in trust by Borrower or
its designee (including Servicer) for the benefit of Lender as the secured party
with respect thereto. Borrower or its designee shall maintain a copy of the
Credit File and the originals of the Credit File document not delivered to
Lender or its designee. The possession of the Credit File or any documents
relating thereto by Borrower or its designee (including Servicer) is at the will
of Lender, for the sole purpose of servicing the related Permitted Investment
and, without limiting the generality of the foregoing in any manner, Servicer
hereby agrees and acknowledges that it takes and holds such possession of any
such documents or Credit File for the benefit of Lender.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES, a. Borrower and
Servicer hereby agree with Lender that Borrower and Servicer will allow Lender
to examine at reasonable times and intervals all pertinent servicing and
liquidation correspondence and disclosure statements evidencing compliance with
all federal and state disclosure laws and regulations applicable to credit
transactions. Borrower and Servicer shall deliver to Custodian original
documents constituting part of each Credit File in cases where copies were
previously delivered to Custodian promptly upon receipt by Borrower or Servicer.
b. At any time upon the request of Lender or Borrower, received by the
Custodian no later than 12:00 p.m., central time on any Business Day, Custodian
shall deliver to Lender and/or Borrower via facsimile or modem, an Asset
Schedule and Exception Report, in each case no later than 3:00 p.m., central
time on the same Business Day, which shall reflect the Exceptions identified by
Custodian as to all Permitted Investments currently held by Custodian.
c. Each Asset Schedule and Exception Report shall list all Exceptions using
such codes as shall be in form and substance agreed to by Custodian, Borrower
and Lender. Each Asset Schedule and Exception Report shall be superceded by a
subsequently issued Asset Schedule and Exception Report. The delivery of each
Asset Schedule and Exception Report (and copy thereof to Borrower) to Lender
shall be Custodian's representation to Lender and Borrower that, other than the
Exceptions listed as part of the Asset Schedule and Exception Report: (i) all
items constituting Loan Collateral ("Assets") required to be delivered or held
pursuant to this Custodial Agreement have been delivered to and are in the
possession of Custodian (ii) all documents required to be delivered in respect
of the Credit File pursuant to this Custodial Agreement have been delivered and
are in the possession of Custodian as part of the Credit File for such Asset,
(iii) the Assets, and Credit Files, and other documents delivered to Custodian
pursuant to this Custodial Agreement have been reviewed by Custodian pursuant to
procedures established or required by Lender and satisfy the requirements set
forth in this Custodial Agreement and (iv) each Obligor Note has been endorsed
in the form provided for in this Custodial Agreement.
d. In connection with an Asset Schedule and Exception Report delivered
hereunder by Custodian, Custodian shall make no representations as to and shall
not be responsible to verify (A) the validity, legality, enforceability, due
authorization, sufficiency, or genuineness of any of the documents contained in
each Credit File or (B) the collectability, insurability, effectiveness or
suitability of any such Asset.
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4. REPRESENTATIONS OF CUSTODIAN. Custodian represents and warrants
to Lender and Borrower that:
a. Custodian has the power and authority and the legal right to execute and
deliver, and to perform its obligations under this Custodial Agreement, and has
taken all necessary action to authorize its execution, delivery and performance
of this Custodial Agreement;
b. No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any other
Person (including, without limitation, any stockholder or creditor of Custodian)
is required in connection with the execution, delivery, performance, validity or
enforceability of this Custodial Agreement;
c. This Custodial Agreement has been duly executed and delivered on behalf
of Custodian and constitutes a legal, valid and binding obligation of Custodian
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (whether enforcement is sought in a proceeding in equity or
at law);
d. Custodian has taken delivery and acquired its interest in the Permitted
Investments in good faith and without notice of any adverse claim; and
e. Custodian is not an Affiliate of any of Servicer, Borrower or Lender.
5. NO ADVERSE INTERESTS. By execution of this Custodial Agreement,
Custodian represents and warrants that it currently holds, and during the
existence of this Custodial Agreement shall hold, no adverse interest, by way of
security or otherwise, in any Permitted Investment, and hereby subordinates,
assigns, waives and releases any such interest to Lender which it may have in
any Permitted Investment as of the date hereof. The Permitted Investments shall
not be subject to any security interest, lien or right to set-off by Custodian
or any third party claiming through Custodian, and Custodian shall not pledge,
encumber, hypothecate, transfer, dispose of, or otherwise grant any third party
interest in, the Permitted Investments. The parties hereto agree and acknowledge
that this Agreement is intended to perfect Lender's security interests in the
Loan Collateral under the UCC in each relevant jurisdiction, in addition to
facilitating Lender's ability to monitor, administer and realize upon any Loan
Collateral in accordance with and subject to the terms of the Credit Agreement
and other Credit Documents.
6. CUSTODIAN'S DUTIES. With respect to each Credit File which is
delivered to Custodian hereunder, Custodian will perform the following duties:
(a) Upon receipt of each Credit File delivered by Servicer
or Borrower pursuant to this Agreement, Custodian will
(i) examine and inventory the contents of such file and
issue receipt therefor confirming that all items are
contained therein or noting any items that are missing
or incomplete, and (ii) verify that all documents appear
to be properly executed, dated and otherwise completed
and any promissory notes are dated, executed, made
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in the amount corresponding to the Permitted Investment
Checklist delivered by Servicer or Borrower to Custodian
with such file and endorsed to iStar. Within two (2)
Business Days of receipt of each Credit File and the
applicable Permitted Investment Closing Checklist,
Custodian will cause to be delivered or faxed to Lender,
Borrower and Servicer a certification (a "Custodian's
Certificate") in the form of Exhibit B attached hereto.
(b) [Intentionally Omitted]
(c) Within five (5) Business Days after receipt of
substantially all of the items shown on the Permitted
Investment Closing Checklist (which is anticipated to be
not later than forty-five (45) days after the receipt of
the matters listed in (a) above), Custodian shall give
Lender, Borrower and Servicer written notice of any
exception with respect to a Credit File in the form of
the Custodian's Certificate or an Asset Schedule and
Exception Report.
(d) During the term that any Credit File is held by
Custodian and after the initial receipt of documents
under (a) and (c), if Custodian discovers any exceptions
with respect to such Credit File, Custodian shall give
Lender and Borrower written notice of such exception by
submitting an Asset Schedule and Exception Report
describing such exception no later than within ten (10)
Business Days of such discovery.
(e) Custodian shall hold all documents constituting each
Credit File received by it as bailee for the exclusive
use and benefit of Lender and (subject to Lender's
security interests) of Borrower under this Agreement.
Custodian shall segregate and maintain continuous
custody of all documents constituting each Credit File
in secure facilities in accordance with customary
standards for such custody, until otherwise notified
pursuant to this Agreement.
(f) Except as expressly permitted hereunder, Custodian shall
maintain continuous custody of the Permitted Investments
held pursuant to this Custodial Agreement. Custodian
shall maintain continuous custody of any securities (as
defined in the UCC) in certificated form or any Obligor
Notes held pursuant to this Custodial Agreement and all
items constituting the Credit File in secure facilities
within the State of Minnesota in accordance with
customary standards for such custody and shall reflect
in its records the interest of Lender therein. Each
certificate or document representing an Permitted
Investment and any other document held pursuant to this
Custodial Agreement designated from time to time by
Lender shall be maintained in fire-proof facilities.
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(g) With respect to the documents constituting an Permitted
Investment held pursuant to this Custodial Agreement
Custodian shall (i) act as the bailee of, and the
custodian for, Lender, (ii) hold all documents
constituting such Permitted Investment or Credit File
received by it for the use and benefit of Lender and
Borrower in accordance with and subject to the terms of
this Agreement, and (iii) make disposition thereof only
in accordance with the terms of this Custodial
Agreement; provided, however, if Lender has notified
Custodian that an Event of Default with respect to
Borrower has occurred and is continuing under the Credit
Agreement, Lender may send other written instructions to
Custodian (with a copy to Borrower) and, Borrower hereby
authorizes and irrevocably directs Custodian to follow
such instructions of Lender without further consent of
and notwithstanding any contrary instructions or
directions from Borrower. In the event of a conflict
between the terms of this Custodial Agreement and such
written instructions, Lender's written instructions
shall control with respect to Custodian, but as between
Lender and Borrower, the Credit Agreement shall govern
and control
(h) In the event that (i) any of Lender, Borrower or the
Custodian shall be served by a third party with any type
of levy, attachment, writ or court order with respect to
any Credit File or any document included within an
Credit File or (ii) a third party shall institute any
court proceeding by which any Credit File or a document
included within an Credit File shall be required to be
delivered otherwise than in accordance with the
provisions of this Custodial Agreement, the party
receiving such service shall promptly deliver or cause
to be delivered to the other parties to this Custodial
Agreement copies of all court papers, orders, documents
and other materials concerning such proceedings. The
Custodian shall, to the extent permitted by law or by
court order, continue to hold and maintain all the
Credit Files that are the subject of such proceedings
pending a final, nonappealable order of a court of
competent jurisdiction permitting or directing
disposition thereof. If so ordered by such court, upon
final determination of such court, the Custodian shall
dispose of such Credit File or any document included
within such Credit File as directed by the Lender which
shall give a direction consistent with such
determination. Expenses of the Custodian incurred as a
result of such proceedings shall be borne by Borrower;
provided, however, that if Lender, but not Borrower, is
a party to such proceedings, then the expenses of
Custodian shall be borne by Lender.
6. RELEASE OF FILES. (a) Upon written request by Lender, at any
time and from time to time after Custodian has been notified by Lender that an
Event of Default has occurred under the Credit Agreement, Custodian is hereby
authorized and instructed to release and deliver to Lender or Lender's designee
any or all Credit Files. Any request for release shall include written
instructions as to the method of shipment and identity of the shipper Custodian
is directed to
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utilize. Borrower shall pay all costs and expenses of shipment and maintain such
insurance against loss or damage as Lender deems appropriate.
(b) Upon prior written request by Servicer (x) to the extent
specifically permitted under the Credit Agreement or (y) in connection with the
enforcement, collection, permitted disposition or restructuring of any of the
Permitted Investments, unless in either case Custodian has received notice from
Lender that an Event of Default has occurred under the Credit Agreement,
Custodian is authorized upon written receipt from Borrower or Servicer of a
request for release of documents (acknowledged and executed by Lender), to
release to Servicer or Borrower the Credit File (other than the Permitted
Investment and Equity Documents) or the documents (other than the Permitted
Investment and Equity Documents), set forth in such Release Request (a "Release
Request") to Servicer or Borrower. With respect to Permitted Customer Equity
Investments and Equity Documents, a Release Request must be approved in writing
by Lender. Servicer or Borrower shall return to Custodian the Credit File or
other such documents when Servicer's need therefor no longer exists, unless the
Permitted Investment shall be liquidated.
(c) Upon receipt by Custodian of a Request Release from Servicer or
Borrower in connection with payment in full of a Permitted Investment, unless
Custodian has received notice from Lender that an Event of Default has occurred
under the Credit Agreement, Custodian shall promptly release the related Credit
File to Servicer.
7. FEES. It is understood that Custodian will charge such fees for
its services under this Agreement as are listed on the attached Exhibit C. Such
fees, together with Custodian's expenses in connection herewith, shall be
payable exclusively by Borrower.
8. TERMINATION. Without prejudice to Custodian's right to payment
for fees and expenses accrued or incurred prior to the effective date thereof,
Lender (if it is dissatisfied with the quality of Custodian's performance
hereunder or if the Servicing Agreement has been terminated), or Custodian may
terminate this Agreement upon sixty (60) days written notice; provided, that
Lender may terminate this Agreement for cause at any time without prior notice.
In the event of any such removal and discharge, Custodian shall promptly deliver
all of the Credit Files as set forth in Section 6(a) hereof. In the event Lender
fails to direct Custodian as to the delivery of the files within thirty (30)
days from the date of the termination notice, Custodian shall deliver all files
to Lender. Upon any discharge of Custodian by Lender hereunder, Lender may
maintain custody of all files or Lender may appoint a successor custodian
subject to Borrower's approval, which approval shall not be unreasonably
withheld, delayed or conditioned; provided that Borrower's approval shall not be
required if an Event of Default (as defined in the Credit Agreement) has
occurred and is continuing.
9. EXAMINATION OF CUSTODIAN'S DOCUMENTS. Upon reasonable prior
written notice to Custodian, Lender and Borrower and their authorized agents,
accountants, attorneys and auditors will be permitted during normal business
hours to examine the Credit Files, documents, records and other papers in
possession of or under the control of Custodian relating to any or all of the
Permitted Investments. Borrower shall pay all reasonable costs and expenses
incurred in
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connection with such examination, including any out-of-pocket expenses incurred
by Custodian relating to such examination, as and to the extent provided in this
Agreement or the Credit Agreement.
10. COPIES OF THE CREDIT FILES. Upon reasonable prior written notice
by Borrower, Servicer or Lender and at the cost and expense of Borrower,
Custodian shall provide Lender, Servicer or Borrower with copies of documents
contained in any of the Credit Files.
11. INSURANCE. Custodian shall, at its own expense, maintain the
usual errors and omissions insurance in such amounts, with standard coverage and
subject to such deductibles, as are customary for insurance typically maintained
by financial institutions which act as custodians in similar transactions.
Custodian shall furnish to Lender or Borrower on request a schedule of insurance
coverage.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
13. CHOICE OF LAW. This Agreement shall be construed in accordance
with the laws of the State of New York and all applicable federal laws and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
14. NOTICES. Any notice or other communication required or permitted
to be given shall be in writing addressed to the respective party as set forth
below and may be personally served, telecopied or sent by overnight courier or
U.S. Mail and shall be deemed given: (a) if served in person, when served; (b)
if telecopied, on the date of transmission if before 3:00 p.m. (New York time)
on a Business Day, or on the Business Day following the date of transmission if
telecopied on a non-Business Day or on a Business Day after 3:00 p.m. (New York
time); provided that a hard copy of such notice is also sent pursuant to (c) or
(d) below; (c) if by overnight courier, on the first business day after delivery
to the courier; or (d) if by U.S. Mail, certified or registered mail, return
receipt requested on the fourth (4th) day after deposit in the mail postage
prepaid.
Notices to Borrower:
Wilton Funding, LLC
TeeKay House, Bayside Executive Park
West Bay Street and Bleak Road
POB AP 59213
Nassau, Bahamas
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxx@xxxxxxx.xx
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with copies to:
Xxxxxxx Consulting CPM, LLC
c/o Xxx Xxxxxxx
00 Xxxxxx Xxxx, 0xx Xxx.
Xxxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
e-mail: xxxxxxxxxx@xxxxxxxxx.xxx
and if to Servicer:
Patriot Capital Funding, Inc.
Sixty Xxx Xxxxxx Xxxx - Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telefax No.: (000) 000-0000
e-mail: xxxxxxxx@xxx-xxx.xxx
in each case, with a copy to:
Morrison, Cohen, Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telefax No.: (000) 000-0000
and if to Lender:
iStar Asset Services, Inc.
000 Xxxxx Xxxxxx Xx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
with copies to:
iStar Financial Inc.
27th Floor
1114 Avenue of the Americas
New York, N.Y. 10036
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Attention: Xxxxx Xxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
e-mail: xxxxxxx@xxxxxxxxxxxxxx.xxx
and if to Custodian: U.S. Bank NA
000 X. Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: 000-000-0000
e-mail: xxxx.xxxxx@xxxxxx.xxx
15. INDEMNIFICATION. Borrower agrees to indemnify and hold harmless
Custodian, its directors, officers, employees and agents from and against any
and all liability, loss and expense, including reasonable counsel fees, arising
from or connected with Custodian's execution and performance of this Agreement,
including but not limited to claims of third parties, but excluding any claim,
loss, liability or expense resulting from the gross negligence or willful
misconduct on the part of Custodian.
16. AUTHORITY. Custodian shall have the power to employ such agents
as it may deem necessary or appropriate in the performance of its duties and the
exercise of its powers under this Agreement.
17. BAILMENT. This Agreement constitutes a bailment for hire.
Custodian is not intended to be, nor shall it be construed to be (except only as
bailee and custodian), the representative, trustee or fiduciary of or for
Lender, Servicer or Borrower. In its capacity as bailee hereunder, Custodian
shall only be liable for any action or omission involving Custodian's negligence
or willful misconduct. In no event shall Custodian have any responsibility to
ascertain any matter or take any action with respect to the Permitted
Investments except as expressly provided herein, whether or not Custodian has or
is deemed to have notice or knowledge of such matter. Custodian does not assume
and shall have no responsibility for monitoring the value of the Permitted
Investment nor for determining the accuracy of Borrower's or Servicer's
representations or certifications made pursuant to this Agreement.
18. CUSTODIAN'S STANDARD OF CARE. Custodian makes no representations
as to the value or condition of the Permitted Investment or any part thereof, or
as to the title of Borrower thereto, or as to the validity or adequacy of the
security afforded thereby, or hereby, or as to the validity of this Agreement
(except as to Custodian's authority to enter into this Agreement) and Custodian
shall incur no liability or responsibility in respect of any such matters.
Without limiting the generality of the foregoing, but subject to Custodian's
obligation to act without gross negligence or willful misconduct, Custodian
shall not be under any duty to examine or pass upon the genuineness or validity
of any of the documents constituting part of a Credit File and shall be entitled
to assume that all documents constituting part of each Credit File are genuine
and valid and that they are what they purport to be, and that any endorsements
or assignments thereon are genuine and valid. Under no circumstances shall
Custodian be obligated to verify the
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authenticity of any signature on any of the documents received or examined by it
or the authority or capacity of any person to execute or issue any such
document. Custodian agrees to use its best judgment and good faith in the
performance of any obligations and duties required under this Agreement and
shall incur no liability to any person for its acts or omissions hereunder,
excluding those as may result from its gross negligence or willful misconduct.
In no event shall Custodian be liable, directly or indirectly, for any
special or consequential damages, even if Custodian has been advised of the
possibility of such damages. Custodian shall be entitled to rely upon the advice
of legal counsel selected by it with reasonable care from time to time and shall
not be liable for any action or inaction by it in reliance upon such advice;
provided, however, that nothing contained in this sentence shall limit the
liability of Custodian for its negligence or willful misconduct. Custodian shall
be also entitled to rely upon any notice, document, correspondence, request or
directive received by it from Lender or Borrower, as the case may be, that
Custodian believes to be genuine and to have been signed or presented by proper
and duly authorized agent or representative thereof (including any officer of
Lender or Borrower, as applicable), and shall not be obligated to inquire as to
the authority or power of any person so executing or presenting such documents
or as to the truthfulness of any statements set forth therein.
19. AGREEMENT PROVISIONS GOVERNING CONDUCT. The provisions of this
Agreement set forth exclusively the duties of Custodian and no implied duties or
obligations shall be read into this Agreement against Custodian. Custodian shall
not be bound in any way by any agreement or contract other than this Agreement
nor shall it be required to take notice of any fact or event, whether or not it
has actual knowledge thereof, except as expressly provided herein. Custodian
shall not be required to ascertain or inquire as to the performance or
observance of any of the covenants or agreements herein contained to be
performed or observed by Borrower or Lender, except as specifically provided in
this Agreement. Custodian shall be under no responsibility or duty with respect
to any Credit File or documents thereof once they have been delivered by
Custodian to any person in accordance with any of the provisions of this
Agreement.
20. NO OBLIGATION TO EXPEND FUNDS. Except as set forth herein,
Custodian shall not be required to expend its own funds or otherwise incur any
financial risk or liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if, in its sole judgment, it
shall reasonably believe that repayment of any funds expended by Custodian or
adequate indemnity against such risk or liability is not assured to it.
21. MERGER OR CONSOLIDATION OF CUSTODIAN. Any Person into which
Custodian may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which
Custodian shall be a party, or any Person succeeding to the business of
Custodian, shall be the successor of Custodian under this Agreement, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
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22. ASSIGNMENT. Except as provided in Section 21 hereof, no party
hereto may assign its rights or delegate its obligations under this Agreement
without the express written consent of the other parties hereto. Any attempted
assignment of rights or delegation of duties without such consent shall be void.
23. RIGHTS LIMITED BY AGREEMENT. Nothing in this Agreement is
intended to confer, expressly or by implication, upon any Person, other than the
parties hereto and their permitted successors and assigns, any rights or
remedies under or by reason of this Agreement.
24. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Agreement shall
be deemed or construed to create a partnership or joint venture among the
parties hereto.
25. ENTIRE AGREEMENT. This Agreement represents the entire agreement
and understanding of the parties with respect to the subject matter of this
Agreement.
26. MODIFICATION OR WAIVER. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by Borrower,
Servicer, Lender or Custodian from any provision of this Agreement shall in any
event be effective unless the same shall be in writing executed by all parties
hereto, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
27. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained therein shall not in any way be affected or impaired thereby.
[EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower, Lender, Servicer and Custodian have caused
this Custodial Agreement to executed by their respective officers thereunto duly
authorized, all as of the date first written above.
BORROWER:
WILTON FUNDING, LLC, a Delaware
limited liability company
By: /s/ XXXXXXX XXXXXXX
-------------------------------------
Name: XXXXXXX XXXXXXX
Title: MANAGER
SERVICER:
PATRIOT CAPITAL FUNDING, INC., a
Delaware corporation
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Name: XXXX XXXXXXXXX
Title: PRESIDENT
CUSTODIAN:
U.S. BANK NA, a national banking
association
By: /s/ XXXX XXXXX
-------------------------------------
Name: XXXX XXXXX
Title: ASSISTANT VICE PRESIDENT
LENDER:
iSTAR FINANCIAL INC., a Maryland
corporation
By: /s/ CHASE X. XXXXXX, XX.
-------------------------------------
Name: CHASE X. XXXXXX, XX.
Title: SENIOR VICE PRESIDENT
