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Exhibit 10.T.6
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT (this "Custodial Agreement") dated as of
September 1, 1998, made by and among:
(i) FINOVA CAPITAL CORPORATION, a Delaware corporation, as
Servicer (the "Servicer");
(ii) LaSalle National Bank, as Custodian (in such capacity, the
"Custodian");
(iii) FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1, as Trust
(the "Trust"); and
(iv) WILMINGTON TRUST COMPANY as Owner Trustee (the "Owner
Trustee").
RECITALS
The Servicer, FINOVA CAPITAL CORPORATION, as Loan Originator
(the "Loan Originator"), FINOVA CAPITAL CORPORATION, as Transfer Obligor, the
Owner Trustee, the Trust and FINOVA Realty Capital Funding, L.P., as Depositor
(the "Depositor"), are parties to the Trust and Servicing Agreement, dated as of
the date hereof (as amended, supplemented or otherwise modified and in effect
from time to time, the "Trust and Servicing Agreement"), pursuant to which the
Trust has agreed, subject to the terms and conditions thereof, to purchase Loans
(as defined in the Trust and Servicing Agreement) from the Depositor and upon
purchase to convey such Loans to Trust.
It is a condition precedent to the issuance of the
Certificates that the parties hereto execute and deliver this Custodial
Agreement to provide for the appointment of the Custodian as custodian of the
Custodial Loan Files (as defined in the Trust and Servicing Agreement) conveyed
to the Trust for the benefit of the Holders of the Certificates. Accordingly,
the parties hereto agree as follows:
Section 1. Definitions.
Unless otherwise defined herein, terms defined in the Trust
and Servicing Agreement, as modifications to such terms are approved by the
Custodian, shall have their respective assigned meanings when used herein, and
the following terms shall have the following meanings:
"Authorized Representative" shall have the meaning specified
in Section 18 hereof.
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"Custodial Delivery Failure" shall have the meaning specified
in Section 13 hereof.
"Exception" shall mean, with respect to any Custodial Loan
File, any of the following: (i) any variance from the requirements of Section
3(c) hereof with respect to such Custodial Loan File (giving effect to the Loan
Originator's right to deliver certified copies in lieu of original documents in
certain circumstances), (ii) a Custodial Loan File that has been temporarily
released to the Loan Originator pursuant to Section 5(a) hereof or to the
Servicer pursuant to Section 5(b)(iii) hereof, (iii) a Loan for which an officer
of the Custodian with particular responsibility for the transactions
contemplated by this Agreement (such officer, a "Responsible Officer") receives
written notice or has actual knowledge of a lien or security interest in respect
of the related Loan in favor of a Person other than the Trust and (iv) a Bailee
Loan for which the Custodian has failed to receive the related Custodial Loan
File by the third Business Day following the applicable Transfer Date.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and having jurisdiction over the
applicable Person.
"Loan Schedule and Exceptions Report" shall mean a list
generated by the Custodian in accordance with Section 3 hereof, of Loans with
respect to which the Custodian holds the Custodial Loan File for the benefit of
the Trust as of the close of business on the prior Business Day, which list
includes codes indicating all Exceptions with respect to each Custodial Loan
File listed thereon. Each Loan Schedule and Exceptions Report shall set forth
(a) all Loans, (b) the related Transfer Date for each Loan, (c) all Loans
released by the Custodian since the prior Loan Schedule and Exceptions Report
and (d) all Exceptions, with any updates thereto from the prior Loan Schedule
and Exceptions Report.
"Review Procedures" shall mean the procedures regarding the
Custodian's review of the Custodial Loan Files attached as Annex I hereto.
Section 2. Appointment of Custodian; Delivery of Custodial
Loan File.
By executing and delivering this Custodial Agreement, the
Owner Trustee has appointed the Custodian to act as agent and custodian for the
exclusive benefit of the Trust with respect to the Loan Documents. The Custodian
hereby accepts such appointment and agrees to maintain and hold all Loan
Documents at any time delivered to it as bailee and custodian for the exclusive
benefit of the Trust. The Custodian acknowledges and agrees that the Custodian
is acting and will act with respect to the Loan Documents for the exclusive
benefit of the Trust and is not, and shall not at any time in the future be,
subject with respect to the Loan Documents, in any manner or to any extent, to
the direction or control of the Loan Originator, Servicer or Depositor except as
expressly permitted hereby. The Custodian agrees to act in accordance with this
Custodial Agreement and in accordance with any written instructions from the
Trust delivered pursuant hereto consistent herewith. Under no circumstances
shall the Custodian deliver possession of any Loan Documents to the Loan
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Originator, the Servicer or the Depositor or any Person other than the Trust
except in accordance with the express terms of this Custodial Agreement or
otherwise upon the written instruction of the Majority Certificateholders.
Section 3. LPA Assignment; Loan Schedule and Exceptions
Report.
(a) With respect to each Transfer Date, no later than 10:30
a.m. New York City time one (1) Business Day prior to such Transfer Date, the
Loan Originator shall provide the Custodian and the Initial Class A
Certificateholder with an LPA Assignment and a related Loan Schedule (such
information contained on the Loan Schedule shall be delivered to the Custodian
and the Initial Certificateholder in computer-readable form acceptable to the
Custodian and Initial Class A Certificateholder) with respect to the Loans to be
delivered to the Custodian on such Transfer Date. If the Custodian has received
such LPA Assignment and Loan Schedule by the time set forth above, and has
received a Custodial Loan File for each Loan identified on the Loan Schedule on
or prior to such Transfer Date, then on such Transfer Date, the Custodian will
deliver, via facsimile and by modem, no later than 2:00 p.m., New York City
time, to the Owner Trustee, with a copy to the Initial Class A
Certificateholder, the Loan Originator and the Trust, a Loan Schedule and
Exceptions Report with respect to such Loans.
(b) With respect to the substitution by the Loan Originator of
a Qualified Substitute Loan pursuant to Section 3.05 or 4.05 of the Trust and
Servicing Agreement, the Loan Originator shall provide the Custodian with an
updated Loan Schedule (such information contained on the Loan Schedule shall be
delivered to the Custodian in computer-readable form) with respect to such
Qualified Substitute Loans to be conveyed to the Owner Trustee. The Custodian
shall, no later than 2:00 p.m., New York City time on the second Business Day
after the Custodian's receipt of the Custodial Loan File with respect thereto,
deliver, via facsimile and by modem, to the Owner Trustee, with a copy to the
Initial Class A Certificateholder, the Loan Originator and the Trust, a Loan
Schedule and Exceptions Report with respect to each such Loan.
(c) Each Loan Schedule and Exceptions Report shall list all
Exceptions using such codes as shall be in form and substance agreed to by the
Custodian and the Initial Class A Certificateholder. The delivery of each Loan
Schedule and Exceptions Report to the Owner Trustee and the Initial Class A
Certificateholder shall be the Custodian's representation that, other than the
Exceptions listed therein: (A) the Custodial Loan File for the related Loan has
been delivered and is in the possession of the Custodian (except as specifically
permitted by the Basic Documents with respect to Bailee Loans), (B) all Loan
Documents delivered to it have been reviewed by the Custodian in accordance with
the Review Procedures and appear on their face to be regular and to relate to
such Loan, (C) based upon a review of the Promissory Note, items (i), (ii),
(iii), (ix), (xi) and (xii) as of the origination date of the Loan with respect
to such Loan, as set forth in the Loan Schedule delivered by the Loan Originator
to the Custodian are the same as shown in the Promissory Note and (D) each Loan
identified on such Loan Schedule and Exceptions Report is being held by the
Custodian as the bailee for the Owner Trustee pursuant to this Custodial
Agreement.
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(d) In connection with each Loan Schedule and Exceptions
Report delivered hereunder by the Custodian, the Custodian shall make no
representations as to and shall not be responsible to verify (A) the validity,
legality, enforceability, due authorization, recordability, sufficiency, or
genuineness of any of the documents contained in each Custodial Loan File or (B)
the collectability, insurability, effectiveness or suitability of any such Loan.
Subject to the preceding sentence, the Loan Originator hereby gives the
Custodian notice that from and after each Transfer Date, the Trust is the sole
owner of each Loan identified on a Loan Schedule and Exceptions Report until
such time that the Custodian receives written notice from the Initial Class A
Certificateholder that the Trust no longer owns such Loan.
(e) Notwithstanding and in addition to the foregoing, in the
event that the Custodian identifies a change to the Exceptions listed on the
prior Loan Schedule and Exceptions Report, the Custodian shall perform any
Review Procedures required with respect thereto and deliver an updated Loan
Schedule and Exceptions Report reflecting such change to the Loan Originator,
the Owner Trustee and the Initial Class A Certificateholder, via facsimile or
modem, no later than 2:00 p.m., New York City time on the next succeeding
Business Day. Each Loan Schedule and Exceptions Report delivered by the
Custodian to the Initial Class A Certificateholder shall supersede and cancel
the Loan Schedule and Exceptions Report previously delivered by the Custodian to
the Initial Class A Certificateholder hereunder.
Section 4. Obligations of the Custodian.
(a) The Custodian shall maintain continuous custody of all
items constituting the Custodial Loan Files in secure facilities in accordance
with customary standards for such custody and shall reflect in its records the
interest of the Trust therein. Each Promissory Note and Assignment of Mortgage
shall be maintained in fire resistant facilities.
(b) With respect to the Loan Documents constituting each
Custodial Loan File, the Custodian shall (i) act exclusively as the bailee of,
and custodian for, the Owner Trustee, (ii) hold all documents constituting such
Custodial Loan File received by it for the exclusive use and benefit of the
Trust, and (iii) transfer Loan Documents to the Loan Originator and Servicer or
at their direction, only in accordance with the terms of this Custodial
Agreement.
(c) In the event that (i) the Owner Trustee, the Loan
Originator, the Servicer or the Custodian shall be served by a third party with
any type of levy, attachment, writ or court order with respect to any Custodial
Loan File or any Loan Document included therein or (ii) a third party shall
institute any court proceeding by which any Custodial Loan File or any Loan
Document included therein 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 and the Initial Class A Certificateholder
copies of all court papers, orders, documents and other materials concerning
such proceedings. The Custodian shall, to the extent permitted by law, continue
to hold and maintain all the Loan Documents that are the subject of such
proceedings pending an order of a court of competent jurisdiction permitting or
directing disposition
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thereof. Upon final determination of such court, the Custodian shall dispose of
such Custodial Loan File or any Loan Document included therein as directed by
such court. Expenses of the Custodian incurred as a result of such proceedings
shall be borne by the Servicer and reimbursed to the Custodian on a current
basis.
(d) The parties hereto hereby acknowledge that the Custodian
shall not be responsible for the validity and perfection of the Owner Trustee's
security interest in the Loan Documents hereunder, other than the Custodian's
obligation to take possession of Loan Documents as set forth in Section 2
hereof.
Section 5. Release of Loan Documents.
(a) To the Loan Originator. The Custodian is hereby authorized
to release Loan Documents relating to Loans in the possession of the Custodian
to the Loan Originator, or its designee, against a Request for Release and
Receipt executed by the Loan Originator and consented to by the Initial Class A
Certificateholder in the form of Annex 2-A hereto, for the purpose of (i)
effecting repurchases or substitutions of Loans by the Loan Originator in
accordance with Sections 3.05 and 4.05 of the Trust and Servicing Agreement or
(ii) correcting documentary deficiencies relating thereto.
In the Request for Release and Receipt, the Loan Originator or
its designee shall agree to return to the Custodian each document previously
released from the Custodial Loan File pursuant to subclause (ii) of the
preceding paragraph within 10 calendar days of receipt thereof. In the Request
for Return and Receipt, the Loan Originator shall represent and warrant to the
Owner Trustee that any such request by the Loan Originator for release of Loan
Documents for correction of documentary deficiencies shall be solely for the
purposes of correcting such deficiencies in preparation for returning such Loan
Documents to the Custodian and that the Loan Originator has requested such
release in compliance with all terms and conditions of such release set forth in
the Trust and Servicing Agreement.
(b) To the Servicer. From time to time until otherwise
notified by the Majority Certificateholders, the Custodian is hereby authorized
upon receipt of Request for Release and Receipt of the Servicer and written
notice thereof to the Initial Class A Certificateholder in the Form of Annex 2-B
hereto, to release Loan Documents in the related Custodial Loan File in the
possession of the Custodian to or at the direction of the Servicer for any Loan
with respect to which (i) foreclosure proceedings have been or are being brought
by the Servicer pursuant to the Trust and Servicing Agreement or the Loan is
otherwise being liquidated pursuant to Accepted Servicing Procedures and the
Trust and Servicing Agreement (ii) all amounts owing thereunder have been paid
and deposited into the Collection Account or (iii) a temporary release may be
necessary in order to facilitate the servicing of such Loan in accordance with
the Servicing Standard and the terms of the Trust and Servicing Agreement. Such
release and delivery shall not exceed five (5) Custodial Loan Files on any one
date. In connection with any temporary release pursuant to subclause (iii), the
Servicer shall return all released Loan Documents to the Custodian promptly
after the need for possession of such
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documentation has ceased. The Custodian shall note the return of such Loan
Documents on the Loan Schedule and Exceptions Report on the Business Day
following such return.
(c) To the Trust. The Custodian is hereby authorized upon
receipt of a Request for Release and Receipt of the Trust and consent thereto by
the Initial Class A Certificateholder in the Form of Annex 2-C hereto, to
release the Custodial Loan File in the possession of the Custodian with respect
to each Loan listed on such request.
(d) Following notification by any Certificateholder or the
Owner Trustee (which may be by facsimile) to the Custodian that a Default or
Event of Default has occurred and is continuing, the Custodian shall not
release, or incur any liability to the Loan Originator, the Servicer, the Trust
or any other Person for refusing to release, any Loan Document without the
express prior written consent of the Majority Certificateholders, which consent
shall not be unreasonably withheld.
(e) The parties hereto hereby acknowledge that the Custodian's
obligations with respect to any documents released pursuant to this Section 5
shall be limited to verifying the authenticity of a Request for Release and
Receipt and consent thereto by comparing the signatures on such documents to
those provided on Annexes 3, 4, 6 and 7 attached hereto and accurately recording
each release on the next Business Day following receipt of such Request for
Release and Receipt. The Custodian will effect a release no later than 5:00
p.m., New York City time, one Business Day following the day on which such
request was made after the Custodian has certified to the compliance with the
terms of this Section 5(a)-(c).
Section 6. Fees and Expenses of Custodian.
The Custodian shall charge such fees for its services under
this Custodial Agreement as are set forth in a separate agreement between the
Custodian and the Servicer, which fees shall not be altered without the prior
written consent of the Majority Certificateholders. The expenses of the
Custodian (exclusive of its fees) under this Custodial Agreement shall be the
obligation of the Servicer to the extent not paid pursuant to Section
7.01(c)(3)(i) of the Trust and Servicing Agreement.
Section 7. Removal or Resignation of Custodian.
(a) The Custodian may at any time resign and terminate its
obligations under this Custodial Agreement upon at least 60 days' prior written
notice to the Servicer, the Initial Class A Certificateholder, the Trust and the
Owner Trustee. Promptly after receipt of notice of the Custodian's resignation,
the Majority Certificateholders shall appoint, by written instrument, a
successor custodian, acceptable to them in their sole discretion. One original
counterpart of such instrument of appointment shall be delivered to each of the
Loan Custodian and the successor custodian.
(b) The Majority Certificateholders, upon at least 60 days'
prior written notice to the Custodian, the Servicer and the Trust, may remove
and discharge the Custodian (or any successor custodian thereafter appointed)
from the performance of its obligations under
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this Custodial Agreement. Promptly after the giving of notice of removal of the
Custodian, the Majority Certificateholders shall appoint, by written instrument,
a successor custodian acceptable to them in their sole discretion.
(c) In the event of any such resignation or removal, the
Custodian shall promptly transfer to the successor custodian, as directed in
writing, all the Custodial Loan Files being administered under this Custodial
Agreement and, if any endorsements on the Promissory Notes, the Assignments of
Mortgage or Assignments of Loan Documents have been completed in the name of the
Custodian, assign such Mortgages, Loan Documents and endorse without recourse,
representation or warranty such Promissory Notes as directed by the Owner
Trustee. The cost of the shipment of Custodial Loan Files arising out of the
resignation of the Custodian shall be at the expense of the Custodian; and any
cost of shipment arising out of the removal of the Custodian shall be at the
expense of the Servicer. The Servicer shall be responsible for the fees and
expenses of the successor custodian and the fees and expenses for endorsing the
Promissory Notes and assigning the Mortgages if required pursuant to this
paragraph. If no successor Custodian is appointed within the 60 days written
notice period, the Custodian may petition a court of competent jurisdiction to
appoint a successor Custodian.
Section 8. Examination of Custodial Loan Files.
Upon reasonable prior notice to the Custodian and at the
Servicer's expense, any Certificateholder, the Servicer, the Trust, the Owner
Trustee and each of their respective agents, accountants, attorneys and auditors
will be permitted during normal business hours to examine the Custodial Loan
Files, documents, records and other papers in the possession of or under the
control of the Custodian relating to any or all of the Loans.
Section 9. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times
during the existence of this Custodial Agreement and keep in full force and
effect fidelity insurance, theft of documents insurance, forgery insurance and
errors and omissions insurance. All such insurance shall be in amounts, with
standard coverage and subject to deductibles, all as is customary for insurance
typically maintained by banks which act as custodian of collateral substantially
similar to the Loan Documents. Upon request, the Owner Trustee shall be entitled
to receive a certificate of the respective insurer that such insurance is in
full force and effect.
Section 10. Representations and Warranties.
The Custodian represents and warrants to the Owner Trustee
that:
(i) the Custodian has the corporate 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 corporate
action to authorize its execution, delivery and performance of this
Custodial Agreement;
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(ii) 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 the Custodian) is required in connection
with the execution, delivery, performance, validity or enforceability
of this Custodial Agreement;
(iii) this Custodial Agreement has been duly executed and
delivered on behalf of the Custodian and constitutes a legal, valid and
binding obligation of the 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); and
(iv) the Custodian is not an Affiliate of the Loan Originator,
the Servicer, the Depositor or the Trust.
Section 11. Statements.
Promptly following the request from time to time of any
Certificateholder, the Owner Trustee, the Loan Originator, the Servicer or the
Trust, the Custodian shall provide to such requesting party a list of all of the
Loans for which the Custodian holds a Custodial Loan File pursuant to this
Custodial Agreement. Such list shall be in the form of a Loan Schedule and
Exceptions Report. Upon the reasonable prior written request of such requesting
party, the Custodian shall make copies (at the expense of the Servicer) of any
documents relating to such Loans for such requesting party.
Section 12. No Adverse Interest of Custodian or Owner Trustee.
By execution of this Custodial Agreement, the 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 Loan, and hereby waives and releases any such interest which
it may have in any Loan as of the date hereof. The Loans shall not be subject to
any security interest, lien or right to set-off by the Custodian or any third
party claiming through the Custodian, and the Custodian shall not convey,
pledge, encumber, hypothecate, transfer, dispose of, or otherwise grant any
third party interest in, any Loan or Loan Document. The Custodian hereby
represents and warrants that it has no knowledge of any adverse claim with
respect to the Owner Trust Estate.
Section 13. Indemnification of Custodian.
(a) The Servicer hereby agrees to indemnify and hold the
Custodian and its directors, officers, agents, employees and "control persons"
within the meaning of the Act and the Securities Exchange Act of 1934, as
amended, harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable attorney's fees, that may be
imposed on, incurred by, or asserted against it or them in any way relating to
or arising out
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of this Custodial Agreement or any action taken or not taken by it or them
hereunder unless such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements were imposed on,
incurred by or asserted against the Custodian relating to or arising out of a
Custodial Delivery Failure or the Custodian's negligence, bad faith or willful
misconduct. The foregoing indemnification shall survive any resignation or
removal of the Custodian or the termination or assignment of this Custodial
Agreement.
(b) In the event that the Custodian fails to produce a
Promissory Note that was in its possession pursuant to Section 2 within two (2)
Business Days after required or requested by the Loan Originator, Servicer,
Trust or Owner Trustee, and provided that (i) Custodian's most recent Loan
Schedule and Exceptions Report did not list such Promissory Note as an Exception
thereon; (ii) such Promissory Note is not released pursuant to a Request for
Release and Receipt in the form annexed hereto as Annex 2-A, B or C; and (iii)
such Promissory Note was held by the Custodian on behalf of the Owner Trustee (a
"Custodial Delivery Failure"), then the Custodian shall at its sole cost and
expense, with respect to any such missing Promissory Note, promptly deliver to
the Trust with a copy to the Initial Class A Certificateholder, the Loan
Originator, the Servicer and the Trust, a Lost Note Affidavit in the form of
Annex 8 hereto.
(c) The Custodian agrees to indemnify and hold the Owner
Trustee, the Loan Originator, the Trust and their respective Affiliates and
designees harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever, including reasonable attorney's fees, that may
be imposed on, incurred by, or asserted against it or them in any way relating
to or arising out of a Custodial Delivery Failure or the Custodian's negligence,
bad faith or willful misconduct. The foregoing indemnification shall survive any
termination or assignment of this Custodial Agreement.
Section 14. Reliance of Custodian.
In the absence of bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any request, instruction,
certificate, opinion or other document furnished to the Custodian, reasonably
believed by the Custodian to be genuine and to have been signed or presented by
the proper party or parties and conforming to the requirements of this Custodial
Agreement; but in the case of any Loan Document or other request, instruction,
document or certificate which by any provision hereof is specifically required
to be furnished to the Custodian, the Custodian shall be under a duty to examine
the same in accordance with the requirements of this Custodial Agreement to the
extent specifically set forth herein.
Section 15. Term of Custodial Agreement.
Promptly after written notice from the Initial Class A
Certificateholder of the termination of the Trust and Servicing Agreement and
the payment in full of all amounts owing to the Class A Certificateholders
thereunder, the Custodian shall deliver all documents
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remaining in the Custodial Loan Files to or at the direction of the Trust, and
this Custodial Agreement shall thereupon terminate.
Section 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the address shown on its signature page hereto, or at such
other addresses as may hereafter be furnished to each of the other parties by
like notice. The Custodian's office is located at the address set forth on its
signature page hereto, and the Custodian shall notify the Owner Trustee, the
Servicer and the Initial Class A Certificateholder if such address should
change.
Section 17. Governing Law.
This Custodial Agreement shall be construed in accordance with
the laws of the State of New York, and the obligations, rights, and remedies of
the parties hereunder shall be determined in accordance with such laws without
regard to the conflict of laws doctrine applied in such state.
Section 18. Authorized Representatives.
Each individual designated as an authorized representative of
the Initial Class A Certificateholder, the Loan Originator, the Custodian, the
Servicer and the Trust, respectively (an "Authorized Representative"), is
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Custodial Agreement on behalf
of the Initial Class A Certificateholder, the Loan Originator, the Custodian,
the Servicer and the Trust, as the case may be, and the specimen signature for
each such Authorized Representative, initially authorized hereunder, is set
forth on Annexes 3, 4, 5, 6 and 7 hereof, respectively. From time to time,
Initial Class A Certificateholder, the Loan Originator, the Custodian, the
Servicer and the Trust or their respective successors or permitted assigns may,
by delivering to the others a revised annex, change the information previously
given pursuant to this Section 18, but each of the parties hereto shall be
entitled to rely conclusively on the then current annex until receipt of a
superseding annex. To determine the identity of the Majority Certificateholders
for purposes of receiving instructions therefrom, the Custodian shall be
entitled to conclusively rely on a certification from the party or parties
purporting to be the Majority Certificateholders as to their status as Majority
Certificateholders.
Section 19. Amendment.
This Custodial Agreement may be amended from time to time with
the prior written consent of the Majority Certificateholders by written
agreement signed by the Servicer, the Owner Trustee and the Custodian.
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Section 20. Cumulative Rights.
The rights, powers and remedies of the Custodian and the Trust
under this Custodial Agreement shall be in addition to all rights, powers and
remedies given to the Custodian and the Owner Trustee by virtue of any statute
or rule of law, the other Basic Documents or any other agreement, all of which
rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing the Owner Trustee's security
interest in the Loan Documents.
Section 21. Binding Upon Successors.
All of the respective rights and obligations of each of the
parties to this Custodial Agreement shall inure to the benefit of and bind each
party hereto and their respective successors and permitted assigns.
Section 22. Entire Agreement; Severability.
This Custodial Agreement and the other Basic Documents contain
the entire agreement with respect to the Custodian and the Custodial Loan Files.
If any of the provisions of this Custodial Agreement shall be held invalid or
unenforceable, this Custodial Agreement shall be construed as if not containing
such provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
Section 23. Execution In Counterparts.
This Custodial Agreement may be executed in counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
Section 24. Tax Reports.
The Custodian shall not be responsible for the preparation or
filing of any reports or returns relating to federal, state or local income
taxes with respect to this Custodial Agreement, other than in respect of the
Custodian's compensation or for reimbursement of expenses.
Section 25. Transmission of Custodial Files.
Written instructions as to the method of shipment and
shipper(s) the Custodian is directed to utilize in connection with transmission
of mortgage files and loan documents in the performance of the Custodian's
duties hereunder shall be delivered by the Servicer to the Custodian prior to
any shipment of any mortgage files and loan documents hereunder. The Servicer
will arrange for the provision of such services at its sole cost and expense
(or, at the Custodian's option, reimburse the Custodian for all costs and
expenses incurred by the Custodian consistent with such instructions) and will
maintain such insurance against loss or damage to Custodial Loan Files as the
Servicer deems appropriate. Without limiting the
-11-
12
generality of the provisions of Section 13 above, it is expressly agreed that in
no event shall the Custodian have any liability for any losses or damages to any
person, including without limitation, the Servicer, arising out of actions of
the Custodian consistent with instructions of the Servicer.
Section 26. Procedures for Bailee Loans.
The Trust, the Owner Trustee, and Custodian agree as follows:
(a) Bailee Agreement. The Loan Originator shall deliver a
fully executed Bailee Agreement and an Identification Certificate to the Bailee
pursuant to the related Bailee Agreement ("Identification Certificate") and on
or prior to the Transfer Date indicated on the Identification Certificate
delivered by the Loan Originator, the Loan Originator shall have caused to be
delivered to the Bailee the documents required pursuant to the Bailee Agreement,
upon which the Bailee shall be required to (i) hold the Custodial Loan File in
connection with such Bailee Loan as bailee and agent for the Initial Class A
Certificateholder and (ii) forward the Custodial Loan File in connection with
such Bailee Loan to the Custodian, via fully insured courier reasonably
acceptable to Initial Class A Certificateholder, for receipt no later than the
third Business Day following the related Transfer Date.
(b) Transfer Date Delivery to Custodian. Bailee shall have
delivered by facsimile to the Custodian those documents listed in Section
3.04(a)(B)(i) of the Trust and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS]
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13
IN WITNESS WHEREOF, this Custodial Agreement was duly executed
by the parties hereto as of the day and year first above written.
FINOVA CAPITAL CORPORATION,
as Servicer
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President- Treasurer
Address for Notices:
FINOVA Capital Corporation
0000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
0000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
FINOVA COMMERCIAL MORTGAGE
LOAN OWNER TRUST 1998-1,
as the Trust
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
FINOVA Commercial Mortgage Loan Owner
Trust 1998-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
00
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
LASALLE NATIONAL BANK,
as Custodian
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Vice President
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: FINOVA Commercial Mortgage
Loan Owner Trust 1998-1
c/o Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Wilmington Trust Company,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
15
Annex 1
to Custodial Agreement
REVIEW PROCEDURES
This Annex sets forth the Custodian's review procedures for each item
listed below delivered by the Loan Originator pursuant to the Custodial
Agreement (the "Agreement") to which this Annex is attached. Capitalized terms
used herein and not defined herein shall have the meanings ascribed to them in
the Agreement.
1. the Promissory Note and the Mortgage, each appear to bear an
original signature or signatures purporting to be the signature or signatures of
the Person or Persons named as the maker and Borrower or grantor, or in the case
of copies of the Mortgage permitted under Section 3.04(a)(3) of the Trust and
Servicing Agreement, that such copies bear a reproduction of such signature;
2. the amount of the Promissory Note is the same as the amount
specified on the related Mortgage, as applicable;
3. the mortgagee is the same as the payee on the Promissory Note;
4. the Mortgage contains a legal description other than address, city
and state on the first page;
5. the notary section (acknowledgment) is present and attached to the
related Mortgage, and is signed;
6. neither the original Promissory Note, nor the Mortgage, delivered
pursuant to the Agreement, nor the original Assignment of Mortgage contain any
notations on their face which appear in the good faith judgment of the Custodian
to evidence any claims, liens, security interests, encumbrances or restrictions
on transfer;
7. the Promissory Note is endorsed in blank by the named holder or
payee thereof;
8. each original Assignment of Mortgage, and any intervening assignment
of mortgage appears to bear the original signature of the named mortgagee or
beneficiary including any subsequent assignors, as applicable, from the
originating Person to the Loan Originator;
9. the date of each intervening assignment is on or after the date of
the related Mortgage and/or the immediately preceding assignment, as the case
may be;
10. the notary section (acknowledgment) is present and attached to each
intervening assignment and is signed; and
11. based upon a review of the Promissory Note, items (i), (ii), (iii),
(ix), (xi) and (xii) as of the origination date of the Loan with respect to such
Loan, as set forth in the Loan
Annex 1-1
16
Schedule delivered by the Loan Originator to the Custodian are the same as shown
in the Promissory Note.
Annex 1-2
17
Annex 2-A
to Custodial Agreement
LOAN ORIGINATOR'S REQUEST FOR RELEASE AND RECEIPT
[Date]
LaSalle National Bank, as Custodian
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: FINOVA Commercial Mortgage
Loan Owner Trust 1998-1
c/o Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Re: Custodial Agreement dated as of September 1, 1998 (the
"Custodial Agreement"), among FINOVA CAPITAL CORPORATION, as
Servicer, LASALLE NATIONAL BANK, as Custodian, WILMINGTON
TRUST COMPANY, as Owner Trustee and FINOVA COMMERCIAL MORTGAGE
LOAN OWNER TRUST 1998-1, as Trust
In connection with the Custodial Loan Files held by the Custodian, we
request the release, and acknowledge receipt, of the (Custodial Loan
File/[specify document]) for the Loan described below, for the reason indicated.
Borrower's Name, Address & Zip Code:
Loan Number:
Reason for Requesting Documents (check one)
Reason for Requesting Documents (check one)
_____ 1. Loan repurchased pursuant to Section 3.05 or 4.05 of the Trust
and Servicing Agreement. (Loan Originator hereby certifies
that the Purchase Price has been credited to the Collection
Account).
_____ 2. Loan substituted pursuant to Section 3.05 or 4.05 of the Trust
and Servicing Agreement. (Loan Originator hereby certifies
that a Custodial Loan File with respect to a Qualified
Substitute Loan or Loans have been deposited with the
Annex 2A-1
18
Custodian and any applicable Substitution Adjustment has been
credited to the Collection Account).
Annex 2A-2
19
_____ 3. Loan subject to documentation corrections for errors and
ambiguities. (Loan Originator hereby certifies that the
documentation released pursuant to this Request for Release
and Receipt has errors or ambiguities that require correction
and that such documentation shall be corrected in a prompt
manner and returned to the Custodian within 14 days in
accordance with the terms of the Custodial Agreement.
Please release to us the specified documents, as well as any additional
documents in your possession relating to the above specified Loan[s].
We will return each aforementioned document within 10 calendar days of
receipt thereof. We as Loan Originator hereby further represent and warrant to
the Owner Trustee that our request for release of these Loan Documents for
correction of documentary deficiencies is solely for the purposes of correcting
such deficiencies in preparation for returning such Loan Documents to the
Custodian and that we have requested such release in compliance with all terms
and conditions of such release set forth in the Trust and Servicing Agreement.
Capitalized words used and not otherwise defined herein have the
meanings assigned to them in the Trust and Servicing Agreement.
FINOVA CAPITAL CORPORATION,
as Loan Originator
By:_______________________________
Name:
Title:
Date:
SUCH RELEASE APPROVED BY
THE INITIAL CLASS A CERTIFICATEHOLDER:
By:_______________________________
Name:
Title:
Annex 2A-3
20
Annex 2-B
to Custodial Agreement
SERVICER'S REQUEST FOR RELEASE AND RECEIPT
[Date]
LaSalle National Bank, as Custodian
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: FINOVA Commercial Mortgage
Loan Owner Trust 1998-1
c/o Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Re: Custodial Agreement dated as of September 1, 1998 (the
"Custodial Agreement"), among FINOVA CAPITAL CORPORATION, as
Servicer, LASALLE NATIONAL BANK, as Custodian, WILMINGTON
TRUST COMPANY, as Owner Trustee and FINOVA COMMERCIAL MORTGAGE
LOAN OWNER TRUST 1998-1, as Trust
In connection with the Custodial Loan Files held by the Custodian, we
request the release, and acknowledge receipt, of the (Custodial Loan
File/[specify document]) for the Loan described below, for the reason indicated.
Borrower's Name, Address & Zip Code:
Loan Number:
Reason for Requesting Documents (check one)
_____ 1. Loan paid in full. (Servicer hereby certifies that all amounts
received in connection therewith have been credited to the Collection Account).
_____ 2. Loan liquidated. (Servicer hereby certifies that all Insurance
Proceeds of foreclosure, or other liquidation have been finally received and
credited to the Collection Account).
_____ 3. Loan in foreclosure or another method of liquidation pursuant to
Accepted Servicing Procedures and the Trust and Servicing Agreement.
Annex 2B-1
21
_____ 4. Release for servicing, to be returned to the Custodian promptly
after the need for possession of such documents has ceased in accordance with
the Custodial Agreement. (explain):
_______________________________________________________
_______________________________________________________
Please release to us the specified documents, as well as any additional
documents in your possession relating to the above specified Loan[s].
If line 4 above is checked, upon our return of all of the above
documents to you, as Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
Servicer represents and warrants that such release and delivery to
Servicer shall note cause the Custodial Loan Files held by the Servicer to
exceed five (5) Custodial Loan Files on any one date.
Capitalized words used and not otherwise defined herein have the
meanings assigned to them in the Trust and Servicing Agreement.
FINOVA CAPITAL CORPORATION,
as Servicer
By:_______________________________
Name:
Title:
Date:
cc: Xxxxxx Xxxxxxx Securitization
Funding Incorporated
Annex 2B-2
22
Annex 2-C
to Custodial Agreement
TRUST'S REQUEST FOR RELEASE AND RECEIPT
[Date]
LaSalle National Bank, as Custodian
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: FINOVA Commercial Mortgage
Loan Owner Trust 1998-1
c/o Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: FINOVA Commercial Mortgage Loan Owner Trust 1998-1
Re: Custodial Agreement dated as of September 1, 1998 (the
"Custodial Agreement"), among FINOVA CAPITAL CORPORATION, as
Servicer, LASALLE NATIONAL BANK, as Custodian, WILMINGTON
TRUST COMPANY, as Owner Trustee and FINOVA COMMERCIAL MORTGAGE
LOAN OWNER TRUST 1998-1, as Trust
In connection with the Custodial Loan Files held by the Custodian, we
request the release, and acknowledge receipt, of the (Custodial Loan
File/[specify document]) for the Loan described below, for the reason indicated.
Borrower's Name, Address & Zip Code:
Loan Number:
Reason for Requesting Documents:
The Loans corresponding to such Custodial Loan Files are subject to
sale in a Securitization.
Please release to us the specified documents, as well as any additional
documents in your possession relating to the above specified Loans.
Capitalized words used and not otherwise defined herein have the
meanings assigned to them in the Trust and Servicing Agreement.
Annex 2C-1
23
FINOVA COMMERCIAL MORTGAGE LOAN
OWNER TRUST 1998-1, as Trust
By: Wilmington Trust Company,
not in its individual capacity but solely as
Owner Trustee
By:_________________________________
Name:
Title:
SUCH RELEASE APPROVED BY
THE INITIAL CLASS A CERTIFICATEHOLDER:
By:_________________________________
Name:_______________________________
Title:______________________________
Annex 2C-2
24
Annex 3
to Custodial Agreement
AUTHORIZED REPRESENTATIVES OF INITIAL CLASS A CERTIFICATEHOLDER
Name Specimen Signature
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Annex 3-1
25
Annex 4
to Custodial Agreement
AUTHORIZED REPRESENTATIVES OF LOAN ORIGINATOR
Name Specimen Signature
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Annex 4-1
26
Annex 5
to Custodial Agreement
AUTHORIZED REPRESENTATIVES OF CUSTODIAN
Name Specimen Signature
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Annex 5-1
27
Annex 6
to Custodial Agreement
AUTHORIZED REPRESENTATIVES OF SERVICER
Name Specimen Signature
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Annex 6-1
28
Annex 7
to Custodial Agreement
AUTHORIZED REPRESENTATIVES OF TRUST
Name Specimen Signature
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Annex 7-1
29
Annex 8
to Custodial Agreement
FORM OF LOST NOTE AFFIDAVIT
I, as ___________________________ (title) of LaSalle National
Bank (the "Custodian"), am authorized to make this Affidavit on behalf of the
Custodian. In connection with the administration of the Loans held by the
Custodian on behalf of Wilmington Trust Company (the "Owner Trustee"),
_______________ (hereinafter called "Deponent"), being duly sworn, deposes and
says that:
1. Custodian's address is:
_______________________
_______________________
_______________________
2. Custodian previously delivered to the Trust a Loan Schedule
and Exceptions Report with respect to the Promissory Note, executed by
_____________ in favor of _______________ in the amount of $____________________
which did not indicate such Promissory Note is missing;
3. Such Promissory Note is not outstanding pursuant to a
Request for Release of Documents;
4. Aforesaid Promissory Note (hereinafter called the
"Original") has been lost;
5. Deponent has made or has caused to be made diligent search
for the Original and has been unable to find or recover same;
6. The Custodian was the Custodian of the Original at the
time of loss; and
7. Deponent agrees that, if said Original should ever come
into Custodian's possession, custody or power, Custodian will immediately and
without consideration surrender the Original to the Owner Trustee.
8. Attached hereto is a true and correct copy of the
Promissory Note, endorsed in blank by the Loan Originator, as provided by FINOVA
COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1 or its designee and (ii) the
Mortgage which secures the Promissory Note, which is recorded at
___________________.
30
9. This Affidavit is intended to be relied on by the Trust,
its successors, and assigns and LaSalle National Bank, as Custodian represents
and warrants that it has the authority to perform its obligations under this
Affidavit.
EXECUTED THIS ____ day of
_______, 199_, on behalf of
the Custodian by:
____________________________
Signature
____________________________
Typed Name
31
On this _________ day of _______________________, 199_, before
me appeared ____________________________________________, to me personally know,
who being duly sworn did say that she/he is the ______________________________
of ______________________, and that said Affidavit of Lost Note was signed and
sealed on behalf of such corporation and said _____________________________
acknowledged this instrument to be the free act and deed of said corporation.
_____________________________________
Notary Public in and for the
State of ____________________________.
My Commission expires: _______________.
