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[EXECUTION COPY]
EXHIBIT 10.5
CUSTODY AGREEMENT
among
CITYSCAPE CORP.
Borrower
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL CORPORATION
Lender
and
CORESTATES BANK, N.A.,
as Custodian
Dated as of September 4, 1997
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TABLE OF CONTENTS
Page
RECITALS................................................................. 1
SECTION 1. Definitions.................................................. 1
SECTION 2. Delivery of Mortgage Files to Custodian...................... 3
SECTION 3. The Custodian's Receipt, Examination and
Certification of Mortgage Files
and Issuance of Trust Receipt.................... 5
SECTION 4. Possession of Mortgage Files................................. 7
SECTION 5. Release of Custodian's Mortgage Files for
Servicing........................................ 9
SECTION 6. Review and Deposit of Additional Mortgage Loans.............. 10
SECTION 7. Waiver by the Custodian...................................... 10
SECTION 8. Right of Inspection by Lender and Third Persons.............. 10
SECTION 9. Custodian's Fees and Expenses................................ 11
SECTION 10. Termination of Agreement.................................... 11
SECTION 11. Resignation and Removal of Custodian........................ 12
SECTION 12. Limitation on Obligations of the Custodian.................. 13
SECTION 13. Notices..................................................... 14
SECTION 14. No Assignment or Delegation by the Custodian................ 15
SECTION 15. Controlling Law............................................. 15
SECTION 16. Agreement for the Exclusive Benefit of Parties.............. 15
SECTION 17. Entire Agreement............................................ 15
SECTION 18. Exhibits.................................................... 15
SECTION 19. Indulgences, Not Waivers.................................... 15
SECTION 20. Titles Not to Affect Interpretation......................... 16
SECTION 21. Provisions Separable........................................ 16
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SECTION 22. Representations and Warranties of the
Custodian........................................ 16
SECTION 23. Successor Custodian by Consolidation, Merger,
Etc.............................................. 17
SECTION 24. Counterparts................................................ 17
EXHIBITS
EXHIBIT A - LETTER OF TRANSMITTAL.............................A-1
EXHIBIT B - NOTICE TO THE CUSTODIAN...........................B-1
EXHIBIT C - TRUST RECEIPT.....................................C-1
EXHIBIT D - NOTICE OF TERMINATION.............................D-1
EXHIBIT E - NOTICE OF DEFAULT CERTIFICATE.....................E-1
EXHIBIT F - LETTER TO CUSTODIAN RE: Lender'S TRUST
RECEIPT.........................................F-1
EXHIBIT G - LETTER TO CUSTODIAN RE: ENDORSEE'S TRUST RECEIPT.G-1
EXHIBIT H - REQUEST FOR RELEASE OF DOCUMENTS..................H-1
EXHIBIT I - CONFIRMATION OF REDEMPTION AND RECEIPT............I-1
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THIS CUSTODY AGREEMENT entered into as of September 4, 1997, by and
among CITYSCAPE CORP. ("Borrower"), BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL CORPORATION
("Lender"), and CORESTATES BANK, N.A., as custodian (the "Custodian"), recites
and provides:
RECITALS
Borrower and Lender have entered into a Master Financing Agreement
dated as of September 4, 1997 and a Request/Confirmation between Borrower and
Lender with respect to each transaction thereunder. The Master Financing
Agreement and the Request/Confirmations are hereinafter referred to collectively
as the "Financing Agreement."
Borrower is obligated to service the Mortgage Loans pursuant to the
terms and conditions of the Financing Agreement.
Borrower desires to deposit with the Custodian all Mortgage Notes and
Mortgages evidencing the Mortgage Loans, together with the other documents
included in the Mortgage Files related to the Mortgage Loans, to be held by the
Custodian as custodian for Lender and its assigns until otherwise instructed by
Lender, all in connection with transactions under the Financing Agreement (each
a "Transaction").
Lender may transfer its interest in the Mortgage Loans to one or more
Third Persons and the Custodian shall act as custodian for such Third Persons.
Custodian desires and is able to perform the duties and obligations as
custodian for Lender as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions. For the purposes of this Agreement, the
following terms shall have the indicated meanings unless the context or use
indicates another or different meaning and intent, the definitions of such terms
are equally applicable to the singular and the plural forms of such terms, the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular section or other
subdivision, and section references refer to sections of this Agreement. All
terms used herein and not defined shall have the respective meanings set forth
in the Financing Agreement.
"Agreement" shall mean this Custody Agreement, as supplemented or
amended from time to time.
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"Borrower" shall have the meaning set forth in the first paragraph of
this Agreement.
"Business Day" shall mean any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the States of New York or
Minnesota or any day on which a bank located in the States of New York or
Minnesota or the New York Stock Exchange is authorized or required to close for
business.
"Custodial Register" shall mean the register maintained by Custodian
pursuant to Section 4(f), which reflects as to each Mortgage Loan the Person to
whom the related Trust Receipt has been issued.
"Custodian" shall mean CoreStates Bank, N.A., or its successor
custodian.
"Loan Number" shall have the meaning set forth in Section 2(a) of this
Agreement.
"Mortgage Assignment" shall mean an assignment of the Mortgage in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage.
"Mortgage File" shall have the meaning set forth in Section 2(b)
hereof.
"Notice Loan Schedule" shall have the meaning set forth in Section 4(b)
of this Agreement.
"Notice of Termination" shall mean the notice substantially in the form
of Exhibit D hereto.
"Officer's Certificate" shall mean a certificate signed by (i) an
officer or an employee, authorized to sign an officer's certificate, of Borrower
or other Person having officers, submitting a Mortgage File to the Custodian or
(ii) the closing attorney for a Mortgage Loan. (The text of any particular
Officer's Certificate may be stamped upon a document constituting a portion of a
Mortgage File so long as such stamped text is signed by manual or facsimile
signature by an officer or an employee authorized to sign an Officer's
Certificate.)
"Original Lender" shall mean the original lender as set forth in the
Mortgage Note, or any successor or assignee under such Mortgage Note.
"Person" shall mean any individual, corporation,
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partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Servicer" shall mean Cityscape Corp. in its capacity as servicer of
the Mortgage Loans.
"Third Person" shall mean a Person other than Borrower, Lender or the
Custodian which Person has acquired an interest in any Mortgage Loans from
Lender and continues to have an interest in such Mortgage Loans.
"Trust Receipt" shall mean an instrument substantially in the form of
Exhibit C hereto.
SECTION 2. Delivery of Mortgage Files to Custodian.
(a) Representations of Borrower. With respect to each Transaction,
Borrower represents that it has, prior to the pledge of any Mortgage Loans to
Lender pursuant to the Financing Agreement, delivered to the Custodian those
documents designated in items 1 -- 7 below (to the extent applicable to such
Mortgage Loans). All documents delivered to the Custodian shall have been placed
by Borrower or its representative in an appropriate file folder, properly
secured, and clearly marked with the name of the Mortgaged Property and the loan
number (the "Loan Number").
(b) By delivery of a Letter of Transmittal, substantially in the form
of Exhibit A hereto, Borrower will from time to time certify that it has
delivered and released to the Custodian the related Mortgage Files for the
Mortgage Loans referred to in such Letter of Transmittal and has in its
possession the other documents with respect to the Mortgage Loans identified in
the mortgage loan schedule attached to the Letter of Transmittal as Schedule 1
(the "Loan Schedule"). The Loan Schedule is the Loan Schedule referred to in the
Financing Agreement.
"Mortgage File" means the following documents (all of which together
constitute an original mortgage file):
(1) the original Mortgage Note, endorsed, "Pay to the order of
__________, without recourse" and signed, by facsimile or manual
signature, in the name of Borrower by an authorized officer. If the
Mortgage Note has been signed by a Person on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized and
empowered such Person to sign or a copy of such power of attorney
together with an Officer's Certificate certifying that such copy
represents a true and correct copy and that such
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original has been duly recorded in the appropriate records depository
for the jurisdiction in which the Mortgaged Property is located. To the
extent that there is no room on the face of the Mortgage Note for
endorsements, the endorsement may be contained on an allonge, if the
law by which such Mortgage Note is governed so permits. Such allonge
shall be firmly affixed to the Mortgage Note so as to become a part
thereof;
(2) the original of any loan agreement and guarantee(s)
executed in connection with the Mortgage Note;
(3) the original Mortgage, with evidence of recording thereon,
or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Mortgage Loans) certifying that the copy is
a true copy of the original of the Mortgage which has been delivered
for recording in the appropriate recording office of the jurisdiction
in which the Mortgaged Property is located, or a copy of the Mortgage
certified by the public recording office in those instances where the
original Mortgage has been lost, destroyed or retained by the public
recording office; and if the Mortgage Note has been signed by a Person
on behalf of the Mortgagor, the original power of attorney or other
instrument that authorized and empowered such Person to sign or a copy
of such power of attorney together with an Officer's Certificate
certifying that such copy represents a true and correct copy and that
such original has been duly recorded in the appropriate records
depository for the jurisdiction in which the Mortgaged Property is
located;
(4) the original Mortgage Assignment assigned in blank for
each Mortgage Loan, in form and substance acceptable for recording
(except for the name of the assignee) and signed in the name of the
last endorsee by an authorized officer;
(5) the originals of all intervening assignments of mortgage,
if any, with evidence of recording thereon or copies thereof certified
by the related recording office or, if the original of any such
assignment has not yet been returned from the recording office, a copy
of the original of any such assignment without evidence of recording
thereon together with an Officer's Certificate (which may be a blanket
Officer's Certificate of Borrower covering all such Mortgage Loans)
certifying that the copy is a true copy of the original of any such
assignment which has been delivered by such attorney or officer for
recording in the appropriate
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recording office of the jurisdiction in which the Mortgaged Property is
located, or a copy of the intervening assignment certified by the
public recording office in those instances where the original recorded
intervening assignment has been lost, destroyed or retained by the
public recording office;
(6) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon or, if the original of any such agreement has not yet
been returned from the recording office, a copy of the original of any
such agreement without evidence of recording thereon together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Mortgage Loans) certifying that the copy is
a true copy of the original of any such agreement which has been
delivered by such attorney or officer for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located, or a copy of such agreement certified by the public recording
office in those instances where the original recorded agreement has
been lost, destroyed or retained by the public recording office.
SECTION 3. The Custodian's Receipt, Examination and Certification of
Mortgage Files and Issuance of Trust Receipt.
(a) The Custodian shall examine the documents received by it and
confirm, as of the date of the Trust Receipt, that on their faces:
(1) the Mortgage Note and Mortgage each bears an original
signature or signatures purporting to be the signature or signatures of
the Person or Persons named as the maker and mortgagor or grantor or,
in the case of copies of the Mortgage permitted under Section 2, that
such copies bear a reproduction of such signature or signatures;
(2) (a) the principal amount of the indebtedness secured by
the Mortgage is identical to the original principal amount of the
Mortgage Note and the original principal amount on the Loan Schedule;
(b) the Mortgage Note term is the same as set forth on the Loan
Schedule; and (c) the Mortgage Note coupon is the same as set forth on
the Loan Schedule;
(3) the Mortgage Note bears original endorsements, by either
manual or facsimile signature, which complete the chain of ownership
from the original holder or payee to the owner of the related Trust
Receipt;
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(4) the original of the Mortgage Assignment and any
intervening mortgage assignment bears the original signature purporting
to be the signature of the named mortgagee or beneficiary (and any
other necessary party, including subsequent assignors) or in the case
of copies permitted under Section 2, that such copies bear a
reproduction of such signature or signatures and that the Mortgage
Assignment and any intervening mortgage assignment complete the chain
of title from the originator to Borrower and from Borrower in blank;
(5) the power of attorney (if any), as specified in Sections
2(b)(1) and 2(b)(3), (A) bears an original signature purporting to be
the signature of the maker of the Mortgage Note and the mortgagor or
grantor of the Mortgage and (B) bears evidence that such power of
attorney was recorded in the appropriate records depository for the
jurisdiction where the Mortgaged Property is located or, in case of
copies permitted under Sections 2(b)(1) and (2)(b)(3), that such copies
bear a reproduction of such signatures and such evidence of
recordation; and
(6) if a Mortgage Note or a Mortgage was executed by an
attorney-in-fact, the power of attorney specified in Sections 2(b)(1)
and 2(b)(3) is included and conforms to the requirements of such
section.
(b) If the Custodian has determined that all the required documents are
included in the Mortgage Files delivered to it and that such related documents
on their faces satisfy the requirements enumerated in Sections 3(a)(1) through
3(a)(6) hereof, the Custodian shall (i) sign a copy of the related Letter of
Transmittal and return the Letter of Transmittal to Borrower via facsimile
transmission with the original Letter of Transmittal to be sent via overnight
courier for next day delivery, and (ii) remit to Lender or its designee a Trust
Receipt with respect to such Mortgage Files signed by the Custodian. If upon
examination of the documents included in any Mortgage File, the Custodian
determines that such documents do not satisfy the above requirements, or is
unable to confirm that such documents satisfy such requirements, the Custodian
shall ▇▇▇▇ such Mortgage Loan as an exception on its Trust Receipt. Except as
set forth in the preceding sentence, the Trust Receipt of the Custodian with
respect to each Mortgage File shall be deemed to include a certification that
the documents reviewed by the Custodian appear regular on their face and relate
to the Mortgage Loan described in the Mortgage File and are in the possession
and control of the Custodian.
(c) The Custodian shall provide a Trust Receipt in
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accordance with subsection (b) above with respect to up to 100 Mortgage Files by
1:00 p.m. New York City time on the date of delivery of such Mortgage Files to
the Custodian so long as such Mortgage Files are delivered to the Custodian
prior to 11:00 a.m. New York City time. In all other cases, the Custodian will
deliver a Trust Receipt by 1:00 p.m. New York City time on the Business Day
following the date of delivery of such Mortgage Files to the Custodian. Each
Trust Receipt shall be delivered by facsimile transmission with the original to
follow by overnight courier for next day delivery.
(d) Under no circumstances shall the Custodian be obligated to verify
the authenticity of any signature on any of the documents received or examined
by it in connection with this Agreement or the authority or capacity of any
person to execute or issue any such document, nor shall the Custodian be
responsible for the value, form, substance, validity, perfection, priority,
effectiveness or enforceability of any of such documents.
(e) Any provision of this Agreement to the contrary notwithstanding,
Borrower shall notify the Custodian of the need to examine a Mortgage File and
deliver a related Trust Receipt not less than forty-eight (48) hours prior to
the date on which such Trust Receipt is required to be delivered.
(f) With respect to any Trust Receipt delivered to Lender hereunder,
the Custodian shall revise its own internal books and records from time to time
to reflect its receipt or release of Mortgage Loans under the terms of this
Agreement so that the applicable Loan Schedule for any such Trust Receipt shall
always accurately reflect the Mortgage Loans held by the Custodian under this
Agreement.
(g) The Custodian and the Borrower shall cooperate with the Lender in
order to provide the Lender with discrete Loan Schedules for each Trust Receipt
issued by the Borrower under the Financing Agreement accurately reflecting the
Mortgage Loans relating to such Trust Receipt that are held by the Custodian
under this Agreement. Each Note shall relate to one or more discrete Trust
Receipts.
SECTION 4. Possession of Mortgage Files.
(a) Possession of Mortgage Files on Behalf of Lender. The Custodian
shall segregate and retain possession and custody of the Mortgage Files for the
exclusive use and benefit of Lender and as agent and bailee of and custodian for
Lender for all purposes until otherwise notified by Lender pursuant to
subsection (b) hereof. The Custodian shall also make appropriate
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notations in the Custodian's books and records reflecting that the Mortgage
Files are owned by Lender unless otherwise notified by Lender pursuant to
subsection (b) hereof. The Custodian shall not release any portion of the
Mortgage Files to Borrower or to any other party without the prior written
authorization of the owner of the Trust Receipt.
(b) Possession of Mortgage Files on Behalf of Third Persons. The
Custodian acknowledges that Lender may transfer its interest in the Mortgage
Loans to one or more Third Persons. Upon receipt of written notice from Lender,
substantially in the form of Exhibit B hereto, that Lender has transferred its
interest in the Mortgage Loans identified on a schedule to such notice (the
"Notice Loan Schedule") to a Third Person together with the Trust Receipt for
amendment of the Schedule attached thereto, the Custodian will promptly issue a
Trust Receipt to such Third Person and shall issue an amended Trust Receipt to
Lender, each of which will reflect the transfer of Lender's interest in certain
Mortgage Loans to such Third Person. The notice sent by Lender to the Custodian
shall be in substantially the form of Exhibit B hereto and shall (i) specify the
name of the Third Person, (ii) specify the address of the Third Person, which
may be an address in care of Lender and (iii) have attached the Notice Loan
Schedule. Upon receipt of any such notice from Lender, the Custodian shall (a)
segregate and retain possession and custody of the Mortgage Files with respect
to the Mortgage Loans in the Notice Loan Schedule as agent and bailee of and
custodian for such Third Person, and (b) make appropriate notations in the
Custodian's books and records reflecting that the Mortgage Files identified in
the Notice Loan Schedule are owned by such Third Person. The Custodian shall
segregate and maintain continuous custody of all Mortgage Files for the benefit
of the Person to whom it has issued a Trust Receipt. Lender's agreements with
each holder of a Trust Receipt other than an affiliate of Lender (each such
holder, a "Transferee") will specify that the Transferee cannot issue
instructions regarding the Mortgage Loans or Mortgage Files unless Lender has
defaulted on Lender's obligations to such Transferee. Accordingly, the Custodian
may not act on requests from a Transferee to withdraw or otherwise dispose of
Mortgage Loans unless the Transferee delivers to the Custodian an executed
Notice of Default Certificate in the form of Exhibit E hereto. The Custodian
shall be entitled to presume conclusively that the Notice of Default Certificate
is properly executed and that when delivered to the Custodian an Event of
Default exists under Lender's agreement with its Transferee.
(c) Upon surrender of the Trust Receipt by Lender to the Custodian,
Lender may issue instructions regarding the Mortgage Loans designated in the
applicable Trust Receipt, including
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instructions to withdraw Mortgage Loans.
(d) In the event a Trust Receipt is lost, destroyed or otherwise
unavailable for surrender to the Custodian, Lender will present to the Custodian
documentation in the form attached as Exhibit F or Exhibit G hereto. Upon
receipt by the Custodian of such documentation, Lender will have the right to
issue instructions regarding the Mortgage Loans covered by a Trust Receipt
without surrender of the related Trust Receipt.
(e) The Custodian understands that Lender may need to examine Mortgage
Loans subject to a Trust Receipt on a periodic basis. Such examination shall
take place on the premises of the Custodian. Lender will give the Custodian two
(2) Business Days' notice before Lender makes an examination. Lender's
agreements with each Transferee will grant Lender the right to make such
examinations.
(f) The Custodian shall cause to be kept at its corporate trust office
records in the form, scope and substance of a register (the "Custodial
Register") in which, subject to such reasonable regulations as it may prescribe,
the Custodian shall reflect the Person to whom the Mortgage Loans have been
pledged as confirmed by Trust Receipts as herein provided. The Custodial
Register shall be deemed to contain proprietary information and only Custodian
and Lender shall have access to such information.
(g) With respect to the redemption of any Mortgage Loan by Borrower
from Lender under the Financing Agreement, the interest of any Third Person in
any such Mortgage Loan shall automatically terminate simultaneously with the
payment to Lender of the Payoff Amount for such Mortgage Loan under the
Financing Agreement and any such interest shall be deemed to have been
transferred to Lender as of such time, except with respect to any Mortgage Loans
delivered to a Third Person pursuant to the Notice of Default Certificate
attached hereto as Exhibit E. Pursuant to the preceding sentence, the interest
of any Third Person shall automatically terminate irrespective of whether such
Third Person receives the appropriate payment for such Mortgage Loan.
SECTION 5. Release of Custodian's Mortgage Files for Servicing. From
time to time and as appropriate for the servicing of any of the Mortgage Loans
by Borrower, the Custodian is hereby authorized, upon written request and
receipt of Borrower and consent and acknowledgement of Lender (to the extent
required by Exhibit H) in the form of Exhibit H, to release to Borrower or its
designee the related Mortgage File, or any documents contained therein, set
forth in such receipt to Borrower. All documents so released to Borrower or its
designee shall be held by it in trust for the benefit of Lender and Third
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Persons from time to time. Except in the case of a Mortgage Loan in foreclosure,
Borrower or its designee shall return to the Custodian the Mortgage File or such
documents when Borrower's need therefor in connection with servicing no longer
exists but in no event later than ten (10) Business Days after their release by
the Custodian as provided herein.
Upon the payment in full of any Mortgage Loan by the mortgagor, and
upon receipt by the Custodian of Borrower's request for release and
acknowledgement by Lender in the form of Exhibit H, the Custodian shall promptly
release the related Mortgage File to Borrower.
Borrower agrees that, at the time any request for release of Mortgage
Files is made to the Custodian under this Agreement, Lender shall be so notified
and a copy of any written request for release shall be furnished to Lender. Upon
its receipt of any released Mortgage Files, Borrower shall so notify Lender.
SECTION 6. Review and Deposit of Additional Mortgage Loans.
(a) If, pursuant to the Financing Agreement, Borrower is required to
deliver additional Mortgage Loans to the Custodian to cure a Margin Deficit or
if Borrower and Lender agree to cause additional Mortgage Loans to become
subject to the Financing Agreement ("Additional Mortgage Loans"), the Custodian
shall retain possession and custody of the Mortgage Files relating thereto
pursuant to Section 4 hereof and, upon receipt and review thereof, shall
transmit to Lender a Trust Receipt relating to such Additional Mortgage Loans
with a Loan Schedule for such Additional Mortgage Loans attached thereto. The
delivery of any Trust Receipt issued under this Section 6(a) shall be made in
the manner as provided in Section 3(c).
(b) Two (2) days prior to the delivery of any Additional Mortgage
Loans, Borrower will advise the Custodian whether the Custodian will be required
to review any Additional Mortgage Loans. Borrower undertakes to use its best
efforts to make available for review any such Additional Mortgage Loans as soon
as is reasonably possible. Upon receipt thereof, the Custodian shall perform its
review of the Mortgage Files relating to any Additional Mortgage Loans in the
manner contemplated by Section 3 hereof.
(c) Borrower covenants and agrees to provide to the Custodian at the
time Borrower delivers any Additional Mortgage Loans under this Agreement, and
at the time any Mortgage Loans are transferred to Borrower pursuant to Section
4(c) hereof, a revised Loan Schedule reflecting current information with respect
to those Mortgage Loans subject to the applicable Trust Receipt.
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SECTION 7. Waiver by the Custodian. Notwithstanding any other
provisions of this Agreement, the Custodian shall not at any time exercise or
seek to enforce any claim, right or remedy, including any statutory or common
law rights of set-off, if any, that the Custodian might otherwise have against
all or any part of a Mortgage File or the proceeds thereof. The Custodian
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of a security interest or otherwise, in
any Mortgage Loan.
SECTION 8. Right of Inspection by Lender and Third Persons. Upon
reasonable notice to the Custodian (which in no event shall be less than two (2)
Business Days notice), the Person or Persons for whom the Custodian is acting as
custodian, or their duly authorized representatives, may at any time, during
ordinary business hours, inspect and examine the Mortgage Files in the
possession and custody of the Custodian at such place or places where such
Mortgage Files are deposited.
SECTION 9. Custodian's Fees and Expenses. The Custodian hereby
acknowledges that Borrower has agreed to pay all reasonable fees due and owing
to, and except as otherwise provided herein, any reasonable expenses incurred by
the Custodian under this Agreement. The fees due to the Custodian for its
services hereunder shall be as set forth in a separate letter agreement between
the Custodian and Borrower. In addition to the fees referred to in the two
foregoing sentences, Borrower has agreed to pay all reasonable out-of-pocket
expenses incurred by the Custodian in connection with the review of each
Mortgage File by it or its agent and its issuance of a Trust Receipt relating
thereto. Neither Lender nor any Third Person shall have any liability or
obligation to pay any such fees or expenses, and the duties of the Custodian
hereunder shall be independent of Borrower's performance of its obligations to
the Custodian in respect of such fees and expenses.
SECTION 10. Termination of Agreement. This Agreement shall become
effective on and as of the date hereof and shall terminate upon the earlier of
(i) the Custodian's receipt of written Notice of Termination signed by the
Person or all of the Persons to whom the Custodian has issued Trust Receipts and
on whose behalf the Custodian is acting as agent, bailee and custodian, (ii) the
removal of all Mortgage Files from the possession of the Custodian pursuant to
the instructions of the Person or Persons entitled to request such removal
pursuant to this Agreement and (iii) if such Mortgage Loan is redeemed by
Borrower from Lender, the receipt by Lender of the Payoff Amount for such
Mortgage Loan under the Financing Agreement. The Custodian shall be entitled
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to rely, and shall be protected in relying, on any such Notice of Termination
delivered to it by such Person or Persons. If this Agreement terminates with
respect to any Mortgage Loan by operation of clause (i) above, the Custodian
shall deliver the related Mortgage File then subject to this Agreement to the
Person indicated in the Notice of Termination. If any Mortgage Loan is redeemed
by Borrower from Lender pursuant to clause (iii) above, then Lender shall
execute and deliver to the Custodian a document in substantially the form of
Exhibit I which confirms the receipt of the Payoff Amount for such Mortgage Loan
and the termination and release of all of Lender's right, title and interest in
such Mortgage Loan, and the Custodian upon receipt of such document shall
deliver the related Mortgage File for such Mortgage Loan to Borrower or such
other Person as Borrower so directs. Upon such termination the Custodian shall
deliver all Mortgage Files then subject to this Agreement to the Person
indicated in such Notice of Termination or if no such Person is indicated, then
to the Person or Persons to whom the Custodian has issued Trust Receipts and for
whom the Custodian is acting on such date and the Custodian shall endorse the
Mortgage Notes without recourse, representation and warranties and execute
mortgage assignments pursuant to any instruction by the Person on whose behalf
the Custodian is acting as agent and bailee pursuant to this Agreement.
SECTION 11. Resignation and Removal of Custodian.
(a) Resignation. The Custodian shall have the right, with or without
cause, to resign as the Custodian under this Agreement upon sixty (60) days'
prior written notice to Borrower, Lender and, to the extent of its interest, any
Third Person. Following any such resignation, the Custodian shall continue to
act as the "Custodian" under this Agreement until it delivers the Mortgage Files
to a duly appointed successor Custodian as provided in (c) below, if any, or to
any designee specified by Lender or any Third Person, as applicable.
(b) Removal. Lender and, to the extent of its interest, any Third
Persons may remove and discharge the Custodian from the performance of its
duties under this Agreement, by providing five (5) days' written notice to the
Custodian, signed jointly by Lender and a majority in interest of (calculated
with reference to the face value of the Mortgage Loans) any Third Person or
Persons with any interest in the Mortgage Loans, as evidenced by the holding of
a Trust Receipt, with a copy to Borrower. Following any such removal, the
Custodian shall continue to act as the "Custodian" under this Agreement until it
delivers the Mortgage Files to a duly appointed successor Custodian as provided
in (c) below, if any, or to any designee specified by Lender or any Third
Person, as applicable.
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(c) Appointment of Successor Custodian; Transfer of Mortgage Loans.
Upon resignation or removal of the Custodian, Lender, Borrower and, to the
extent of its interest and if permitted by Section 4 hereof, any Third Person
shall have 60 days in which to appoint and designate a successor to take
possession of the Mortgage Files or select one or more designees to take
possession thereof. Upon receipt of written direction regarding the foregoing
from Lender, Borrower and any such Third Person, the Custodian shall deliver all
Mortgage Files to the person so designated within 10 days following delivery to
the Custodian of such written notice. If a successor Custodian is appointed, the
Custodian shall deliver the Mortgage Files in accordance with the written
instructions of Lender, Borrower and a majority in interest of (calculated with
reference to the face value of the Mortgage Loans) Third Persons having
interests in the Mortgage Loans to the extent such Third Persons are permitted
to take action with respect thereto under Section 4 hereof setting forth the
name and address of the successor Custodian. If Lender, Borrower and, to the
extent of its interest, any such Third Person, fail to jointly designate a
successor Custodian or specify one or more designees within such 60-day period,
then the Custodian shall deliver possession and custody to Lender and, if
otherwise permitted under Section 4 hereof, any Third Person, of their
respective Mortgage Files, as applicable, at the address specified in the
Custodian's records. The Custodian shall, as part of the transfer of the
Mortgage Files, deliver the Mortgage Assignment for each Mortgage Loan in
recordable form and shall endorse the Mortgage Note without recourse,
representation and warranties in accordance with Lender's or the applicable
Third Person's instructions. Any successor Custodian hereunder shall be a
financial institution whose deposits are insured by FDIC, have a net worth of
not less than $10,000,000 and shall have secure vault storage facilities located
in the State of New York or such other State as Lender and Borrower may agree,
in which the Mortgage Files are to be retained.
SECTION 12. Limitation on Obligations of the Custodian. The Custodian
shall have no duties or obligations other than those specifically set forth
herein, and no further duties or obligations shall arise by implication or
otherwise. The Custodian agrees to use its best judgment and good faith in the
performance of such obligations and duties and shall incur no liability to
Borrower for its acts or omissions hereunder, except as may result from its
gross negligence or willful misconduct. The Custodian shall also be entitled to
rely (and shall be protected in relying) upon written advice of its legal
counsel and to rely upon any written notice, document, correspondence, request
or directive received by it from Lender, any Third Person (if applicable), or
Borrower, as the case may be, that the
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Custodian believes to be genuine and to have been signed or presented by the
proper and duly authorized officer or representative thereof, 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. No provision of this Agreement shall require the Custodian to expend or
risk its own funds or otherwise incur financial liability in the performance of
its duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity is not reasonably assured to it.
Borrower agrees to indemnify, defend and hold the Custodian harmless from and
against any claim, legal action, liability or loss that is initiated against or
incurred by the Custodian, including court costs and reasonable attorney's fees
and disbursements, and all of the Custodian's other cost, damage or expense
incurred in connection with the Custodian's performance of its duties under this
Agreement, but excluding any such claim, legal action, liability, loss, cost,
damage or expense caused by Custodian's gross negligence or willful misconduct.
The Custodian shall at its own expense maintain at all times during the
existence of this Agreement and keep in full force and effect (a) fidelity
insurance, (b) theft and loss of documents insurance, (c) forgery insurance, and
(d) errors and omissions insurance. All such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks which act as the Custodian in similar
transactions. The Custodian shall, upon written request, provide to Borrower, or
to any other Person as Borrower shall direct, a certificate signed by an
authorized officer of the Custodian certifying that the foregoing insurance
policies are in full force and effect. The Custodian shall use its best efforts
to ensure that such insurance shall not terminate prior to receipt by Lender by
registered mail of 30 days' prior written notice thereof.
SECTION 13. Notices. Any notice, demand or consent required or
permitted by this Agreement shall be in writing and shall be effective and
deemed delivered only when received by the party to which it is sent. Any such
notice, demand or consent shall be delivered in person or transmitted by a
recognized private courier service or deposited with the United States Postal
Service, certified mail, postage prepaid, return receipt requested, addressed as
follows, unless such address is changed by written notice hereunder:
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If to Borrower:
Cityscape Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy at the same address to:
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender:
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Custodian:
CoreStates Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 14. No Assignment or Delegation by the Custodian. The Custodian
shall not assign, transfer, pledge or grant a security interest in any of its
rights, benefits or privileges hereunder nor delegate or appoint any other
person to perform or carry out any of its duties, responsibilities or
obligations under this Agreement; any act or instrument purporting to effect any
such assignment, transfer, pledge, grant, delegation or appointment shall be
void.
SECTION 15. Controlling Law. This Agreement and all questions relating
to validity, interpretation, performance and enforcement shall be governed by
and construed, interpreted and enforced in accordance with the laws of the State
of New York, without regard to any New York or other conflict-of-law provisions.
SECTION 16. Agreement for the Exclusive Benefit of Parties. This
Agreement is for the exclusive benefit of the parties
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19
hereto, and their respective successors and permitted assigns, and shall not be
deemed to create or confer any legal or equitable right, remedy or claim upon
any other person whatsoever except a Third Person to the extent rights are
explicitly conferred on any one or more Third Persons pursuant to this
Agreement.
SECTION 17. Entire Agreement. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof, including any prior
custody agreements. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing signed by Lender, Borrower and the Custodian.
SECTION 18. Exhibits. All Exhibits referred to herein or attached
hereto are hereby incorporated by reference into, and made a part of, this
Agreement.
SECTION 19. Indulgences, Not Waivers. Neither the failure nor any delay
on the part of a party hereto to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the parties asserted to have granted
such waiver.
SECTION 20. Titles Not to Affect Interpretation. The titles of sections
and subsections contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
SECTION 21. Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other provision or provisions may be invalid or unenforceable in whole or in
part.
SECTION 22. Representations and Warranties of the
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Custodian. The Custodian represents, warrants to, and covenants with Lender that
on the date hereof, and on the date of the issuance of any Trust Receipt by the
Custodian:
(1) The Custodian is (i) a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and (ii) duly qualified and in good standing
and in possession of all requisite authority, power, licenses, permits
and franchises in order to execute, deliver and comply with its
obligations under the terms of this Agreement;
(2) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action and the
execution and delivery of this Agreement by the Custodian in the manner
contemplated herein and the performance of and compliance with the
terms hereof by it will not (i) violate, contravene or create a default
under any applicable laws, licenses or permits to the best of its
knowledge, or (ii) violate, contravene or create a default under any
charter document or bylaw of the Custodian or to the best of the
Custodian's knowledge any contract, agreement, or instrument to which
the Custodian or by which any of its property may be bound and will not
result in the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its property;
(3) The execution and delivery of this Agreement by the
Custodian and the performance of and compliance with its obligations
and covenants hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required, it
has been obtained;
(4) This Agreement, and the original Trust Receipt issued
hereunder, when executed and delivered by the Custodian will constitute
valid, legal and binding obligations of the Custodian, enforceable
against the Custodian in accordance with their respective terms, except
as the enforcement thereof may be limited by applicable debtor relief
laws and that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or at law;
(5) Custodian does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(6) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened which, if determined adversely to
Custodian, would adversely affect the
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21
execution, delivery or enforceability of this Agreement, or any of the
duties or obligations of Custodian thereunder, or which would have a
material adverse effect on the financial condition of Custodian; and
(7) Upon written request of a Lender or any Third Person, and
assurance reasonably satisfactory to Custodian that its costs of doing
so will be timely reimbursed and that Custodian will receive reasonable
compensation (in addition to the compensation provided for elsewhere in
this Agreement) for doing so, Custodian shall take such steps as may be
reasonably requested by Lender or any Third Person (consistent with
Custodian's undertakings hereunder) to protect or maintain any interest
in any real property securing the Mortgage Loan owned by such owner and
any insurance applicable thereto.
SECTION 23. Successor Custodian by Consolidation, Merger, Etc. If the
Custodian consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor custodian,
provided that (i) the successor corporation does not directly or indirectly
control and is not under the direct or indirect control of the Lender or the
Borrower, or (ii) any officer or director of the successor does not act as an
officer or director of the Lender or the Borrower.
SECTION 24. Counterparts. For the purpose of facilitating the execution
of this Agreement as herein provided and for other purposes, this Agreement may
be executed simultaneously in any number of counterparts, each of which
counterpart shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date set forth above.
CITYSCAPE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
CORESTATES BANK, N.A.,
as Custodian
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Tust Officer
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
LETTER OF TRANSMITTAL
To: CoreStates Bank, N.A., From: Cityscape Corp.
as Custodian ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
______________________________ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
__________________
Pursuant to the Custody Agreement dated as of September 4, 1997 (the
"Custody Agreement") among CoreStates Bank, N.A., as custodian (the
"Custodian"), Cityscape Corp. ("Borrower"), and Bear ▇▇▇▇▇▇▇ Mortgage Capital
Corporation, Borrower hereby delivers to you (i) the documents described below
in connection with the Mortgage Loans identified on the attached schedule and
(ii) an updated Loan Schedule identifying each Mortgage Loan in your custody
(including the Mortgage Loans referred to in clause (i) above).
We understand that the list set forth below indicates in summary
fashion the materials for transmittal; it is not intended to describe fully all
the required characteristics of each item. We further understand that each item
sent to the Custodian must comply with the applicable requirements of the
Custody Agreement, and that all required documents must be delivered together
before the Custodian will accept the Mortgage Loans.
With respect to each of the Mortgage Loans referred to in clause (i)
above, Borrower has delivered, to the extent required by the Custody Agreement,
the following documents:
(1) Letter of Transmittal (original and one copy)
(2) Original Mortgage Note (endorsed in blank), including all intervening
endorsements Power of Attorney (if applicable)
(3) Original of any loan agreement and guarantee executed in connection
with the Mortgage Notes, if applicable
(4) Mortgage original, or Conformed Copy, together with the appropriate
certificate
(5) Assignment of Mortgage in blank original, or Conformed Copy, together
with the appropriate certificate
(6) Intervening Mortgage Assignment, if any original, or Conformed Copy,
together with the appropriate certificate
(7) originals of all assumption, modification, consolidation or extension
agreements, if any
(8) Original Lender's Title Insurance Policy original, or Written
commitment issued by the title insurance company, together with the
appropriate certificate, or Preliminary Title Report
(9) other.
A-1
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Submitted The Custodian acknowledges receipt of the documents
By: referred to and agrees to hold and retain possession
thereof pursuant to the terms of the Custody
Date: Agreement.
Telephone Number: CORESTATES BANK, N.A.,
as Custodian
By:
Name:
Title:
A-2
25
EXHIBIT B
NOTICE TO THE CUSTODIAN
TO: CoreStates Bank, N.A., as Custodian
FROM: Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
DATE: ____________________
Pursuant to the Custody Agreement dated as of September 4, 1997, among
Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation and CoreStates Bank,
N.A., as Custodian ("Custody Agreement"), the undersigned hereby notifies you
that it has transferred its interest in the Mortgage Files with respect to the
Mortgage Loans identified in the mortgage loan schedule attached hereto (the
"Notice Loan Schedule") to [TRANSFEREE NAME AND ADDRESS].
Included with this notice is the original Trust Receipt for amendment
of the Loan Schedule attached thereto. Capitalized terms used herein without
definition are as defined in the Custody Agreement.
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: _____________________________
Name:
Title:
[Name of transferee] hereby acknowledges that (i) the Mortgage Loans listed on
the Notice Loan Schedule are being held for it by the Custodian pursuant to the
terms of the Custody Agreement, (ii) it agrees to be bound by the Custody
Agreement, (iii) the Custodian shall not comply with the request of a Third
Person to deliver Mortgage Files unless such Third Person has delivered to the
Custodian an executed Notice of Default Certificate and (iv) it is responsible
for payment of any fees and expenses of the Custodian incurred in connection
with the issuance of periodic reports to it or in complying with its requests.
[NAME OF TRANSFEREE]
By: ______________________________
Name: ____________________________
Title: ___________________________
cc: Cityscape Corp.
26
EXHIBIT C
TRUST RECEIPT
[Date]
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
Prin. Amt. of Number of
Trust Receipt #___ Mortgage Loans ___ Mortgage Loans ___
Re: Custody Agreement dated as of September 4, 1997, among
Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation and
CoreStates Bank, N.A., as Custodian
Gentlemen:
In accordance with the provisions of Paragraph 3 of the
above-referenced Custody Agreement (the "Custody Agreement"), the undersigned,
as Custodian, hereby certifies that as to each Mortgage Loan described in the
Loan Schedule, a copy of which is attached hereto, it has reviewed the Mortgage
File and has determined that, except as set forth on the Exception Report
attached hereto, (i) all documents required to be delivered to it pursuant to
the Custody Agreement are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan, and (iii) based on its examination of the foregoing documents, such
documents on their face satisfy the requirements set forth in Sections 3(a)(1)
through 3(a)(6) of the Custody Agreement.
The Custodian hereby confirms that it is holding each such Mortgage
File as agent and bailee of and custodian for and for the exclusive use and
benefit of Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation ("BSMCC"), as pledgee, or
its transferee pursuant to the terms of the Custody Agreement.
This Trust Receipt is not a negotiable instrument. BSMCC may, however,
transfer this receipt by a special endorsement to one other party. The party
that takes this receipt from BSMCC or its affiliate by special endorsement may
only transfer this receipt by a second endorsement in BSMCC's or its affiliate's
favor.
The Custodian will accept and act on instructions with respect to the
Mortgage Loans only upon surrender of this receipt at its Corporate Trust
Office, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ Level,
C-1
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Philadelphia, Pennsylvania 19101, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. If the receipt
has been endorsed and is held by a Person other than BSMCC or one of its
affiliates, we will accept and act on instructions from the endorsee only if the
attached Notice of Default Certificate is executed and delivered to us stating
that an Event of Default has occurred under a financing agreement relating to
this Trust Receipt between BSMCC and the endorsee.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Custody Agreement.
CORESTATES BANK, N.A.,
as Custodian
By: ____________________________
Name:
Title:
C-2
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EXHIBIT D
NOTICE OF TERMINATION
[date]
TO: CoreStates Bank, N.A., as Custodian
FROM: Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation [and, one or more Third
Persons, if applicable]
DATE: ____________________
You are hereby notified that the Custody Agreement, dated as of
September 4, 1997, among Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital
Corporation and CoreStates Bank, N.A., as Custodian, is terminated pursuant to
Section 10 of such Agreement and you are instructed to deliver all property in
your possession with respect to such Agreement to [the undersigned Person or
Persons as their interests in the Mortgage Loans appear on your records].
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: ______________________________
Name:
Title:
[__________________________________]
By: ______________________________
Name:
Title:
cc: Cityscape Corp.
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EXHIBIT E
NOTICE OF DEFAULT CERTIFICATE
_____________, 199_
CoreStates Bank, N.A.,
as Custodian
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
As the transferee of a Trust Receipt for certain Mortgage Loans, which
Trust Receipt is attached hereto, we hereby notify you that an event of default
has occurred under our agreement with ________________________ and we are
entitled to receive the Mortgage Loans subject to the aforementioned Trust
Receipt.
[_________________________________]
By: ______________________________
Name:
Title:
Notice Received by Custodian
on [Date]:
CORESTATES BANK, N.A.,
as Custodian
By: ____________________________
Title:
Date:
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ Bank, N.A.,
as Custodian
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Custody Agreement dated as of September 4, 1997, among
Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation and
CoreStates Bank, N.A., as Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of BSMCC evidencing
entitlement to the Mortgage Loans described on Schedule A hereto and held by you
as Custodian. You issued that receipt pursuant to our agreement with Cityscape
Corp. dated as of September 4, 1997. The trust receipt has been [lost,
destroyed, etc.]. Every effort was made to recover the receipt; those efforts
were unsuccessful. It is, therefore, now unavailable for surrender to you.
At the time of its [loss, destruction, etc.], the receipt was held by
us under [the terms of original issue, special endorsement]. Since its
[issuance, endorsement] to us, we have not sold, assigned, transferred, pledged
or otherwise granted an interest in the trust receipt that has not been released
prior to the date hereof. Accordingly, this letter authorizes you to act on our
instructions regarding such Mortgage Loans without surrender of the receipt to
you.
We hereby agree to indemnify and hold you harmless against any loss,
liability or expense that you may incur as a result of acting on our
instructions regarding such Mortgage Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
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If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: ______________________________
Name:
Title:
F-2
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EXHIBIT G
CoreStates Bank, N.A.,
as Custodian
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Custody Agreement dated as of September 4, 1997, among
Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation and
CoreStates Bank, N.A., as Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of Bear ▇▇▇▇▇▇▇
Mortgage Capital Corporation ("BSMCC") evidencing entitlement to the Mortgage
Loans described on Schedule __ hereto and held by you in the name of CoreStates
Bank, N.A., as Custodian. You issued that receipt pursuant to our agreement with
Cityscape Corp. dated as of September 4, 1997. The trust receipt has been [lost,
destroyed, etc.]. Every effort was made to recover the receipt; those efforts
were unsuccessful. It is, therefore, now unavailable for surrender to you.
At the time of its [loss, destruction, etc.], the receipt was held by
[name of transferee] under a special endorsement by us. We have attached to this
letter a special endorsement, from [name of transferee] conveying to us its
interest in the trust receipt and authorizing us to issue instructions regarding
the Mortgage Loans subject thereto without surrender of the receipt. [name of
transferee] has represented to us that it has not sold, assigned, transferred,
pledged or otherwise granted an interest in the trust receipt to any party other
than BSMCC. Accordingly, this letter authorizes you to act on our instructions
regarding such Mortgage Loans without surrender of the receipt to you.
We hereby agree to indemnify and hold you harmless against any loss,
liability or expense that you may incur as a result of acting on our
instructions regarding such Mortgage Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
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If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: ______________________________
Name:
Title:
G-2
34
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: CoreStates Bank, N.A.,
as Custodian
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Custody Agreement dated as of September 4, 1997, among
Cityscape Corp., Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation and
CoreStates Bank, N.A., as Custodian
In connection with the administration of Mortgage Loans held
by you as Custodian for Lender and Third Persons from time to time pursuant to
the above-referenced Custodial Agreement, we hereby request the release, and
acknowledge receipt, of the [specify documents] [related Mortgage Files] for the
Mortgage Loans described in the attached Loan Schedule, for the reason
indicated.
Mortgagor's Name Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one):
1. Mortgage Loan paid in full.
2. Redemption of Mortgage Loan pursuant to the Financing Agreement.
3. Delivery of substituted Mortgage Loan.
4. Mortgage Loan liquidated by .
5. Mortgage Loan in foreclosure or otherwise released for servicing.
If box 1, 2, 3 or 4 above is checked, and if all or part of the
Mortgage Files were previously released to Cityscape Corp. please release to
Cityscape Corp. its previous request and receipt on file with you, as well as
any additional documents in your possession relating to the specified Mortgage
Loan.
If box 5 above is checked, upon the return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning
H-1
35
this form.
Cityscape Corp. understands and agrees that all documents delivered to
Cityscape Corp. or its subservicer pursuant to this request for release (other
than with respect to Items 1-4) shall be returned to the Custodian no later than
twenty-one (21) days from the date hereof. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Custody
Agreement.
CITYSCAPE CORP.
By: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
Acknowledged and Agreed:
BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL CORPORATION
(Required for release of any Mortgage Files.)
By: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
H-2
36
Acknowledgement of documents returned to the Custodian, for the reasons listed
in item 5:
CORESTATES BANK, N.A.,
as Custodian
By: __________________________
Name: __________________________
Title: __________________________
Date: __________________________
H-3
37
EXHIBIT I
CONFIRMATION OF REDEMPTION AND RECEIPT
To: CoreStates Bank, N.A., as Custodian
Cityscape Corp.
Date: ___ _, 199_
Re: Custody Agreement, dated as of September 4, 1997, among Bear ▇▇▇▇▇▇▇
Mortgage Capital Corporation (the "Lender"), Cityscape Corp. (the
"Borrower") and CoreStates Bank, N.A., as Custodian thereunder
Lender hereby:
1. Acknowledges receipt of $______________ in immediately available
funds on behalf of Borrower;
(b) Acknowledges that the funds referred to in clause (a) above
constitute sufficient consideration under the terms of the Master Financing
Agreement, dated as of September 4, 1997 among Lender and Borrower, for the
release by Lender of its interest in the Mortgage Loans listed on Schedule A
hereto;
(c) Confirms that it has released to Borrower all of its right, title
and interest in and to the Mortgage Loans listed on Schedule A hereto; and
(d) Confirms that it has not granted or created any interest in the
Mortgage Loans listed on Schedule A hereto other than interests that have been
fully discharged or satisfied on or prior to the date hereof.
Dated: ___ _, 199_ BEAR ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
CORPORATION
By: ______________________________
Name: ____________________________
Title: ___________________________
I-1