EXHIBIT 10.12
CUSTODY AGREEMENT
This CUSTODY AGREEMENT dated as of October 2, 1996, by and among CS FIRST
BOSTON MORTGAGE CAPITAL CORP., a Delaware corporation, having an address at Park
Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Buyer"), BANKERS
TRUST COMPANY OF CALIFORNIA, N.A., a national association, having an address at
0 Xxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Custodian"), T.A.R.
PREFERRED MORTGAGE CORPORATION, having an address at 00000 XxxXxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 ("Seller") and ADVANTA MORTGAGE CORP. USA,
having an address at 00000 Xxxx Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
("Servicer").
WITNESSETH:
WHEREAS, the Seller and the Buyer may from time to time enter into
transactions (each, a "Transaction") in which the Buyer agrees to purchase from
the Seller certain mortgage loans (the "Mortgage Loans"), with a simultaneous
agreement by the Seller to repurchase such Mortgage Loans on a specified date as
provided in a Master Repurchase Agreement, dated as of October 2, 1996, between
the Seller and the Buyer (the "Master Repurchase Agreement"), a Confirmation
between the Seller and the Buyer (the "Confirmation" and a Transaction Notice
between the Seller and the Buyer (the "Transaction Notice"); as to each
Transaction, the related Confirmation, the Transaction Notice and the Master
Repurchase Agreement are referred to collectively as the "Repurchase
Agreement");
WHEREAS, pursuant to the terms of this Agreement and a Servicing Agreement,
dated as of March 8, 1996, between the Seller and the Servicer (the "Servicing
Agreement"), the Servicer will service the Mortgage Loans for the Buyer; and
WHEREAS, the Seller has agreed to deliver certain documents with respect to
the Mortgage Loans subject to each Transaction to the Custodian, and the
Custodian has agreed to take possession of such documents in accordance with the
terms and conditions thereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto agree as follows:
1. At least three Business Days (as defined herein) before the effective
date for each Transaction (the "Purchase Date"), the Seller shall deliver, or
cause to be delivered, to the Custodian and the Buyer a schedule of Mortgage
Loans subject to such Transaction containing the information set forth on
Exhibit 1 hereto, in both hard copy and on floppy disk or other electronic
medium acceptable to the Custodian and the Buyer ("Mortgage Loan Schedule"), and
the Seller shall deliver, or shall cause to be delivered, and shall release to
the Custodian the following documents pertaining to each of the Mortgage Loans
identified in the Mortgage Loan Schedule, which documents the Custodian shall
hold for the benefit of the Buyer, its successors or assigns, as the owner
thereof:
(i) the original mortgage note or other evidence of indebtedness
(the "Mortgage Note") of the obligor thereon (each such obligor, a "Mortgagor"),
endorsed to the order of or assigned to the Seller by the holder/payee thereof,
without recourse, and endorsed by Seller, without recourse, in blank, together
with all intervening endorsements showing a complete chain of endorsements from
the originator of the Mortgage Loan to the Seller;
(ii) the original recorded mortgage, deed of trust or other
instrument (the "Mortgage") creating a lien on the underlying property securing
the Mortgage Loan (the "Mortgaged Property"), naming Seller as the "mortgagee"
or "beneficiary" thereof, and bearing on the face thereof the address of Seller,
or, if the Mortgage does not name Seller as the mortgagee/beneficiary, the
Mortgage, together with an instrument of assignment assigning the Mortgage,
individually or together with other Mortgages, to Seller and bearing on the face
thereof the address of Seller, and, in either case, bearing evidence that such
instruments have been recorded in the appropriate jurisdiction where the
Mortgaged Property is located as determined by Seller (or, in lieu of the
original of the Mortgage or the assignment thereof, a duplicate or conformed
copy of the Mortgage or the instrument of assignment, if any, together with a
certificate of receipt from the Seller or the settlement agent who handled the
closing of the Mortgage Loan, certifying that such copy or copies represent true
and correct copy(ies) of the original(s) and that such original(s) have been or
are currently submitted to be recorded in the appropriate governmental recording
office of the jurisdiction where the Mortgaged Property is located) or a
certification or receipt of the recording authority evidencing the same;
(iii) an original assignment of Mortgage, with the assignee's name
left blank, which assignment appears to be in form and substance acceptable for
recording and, in the event that the Seller acquired the Mortgage Loan in a
merger, the assignment must be by "[Seller], successor by merger to [name of
predecessor] ";
(iv) the original of any intervening assignment of the Mortgage
not included in (ii) above, including any warehousing assignment, with evidence
of recording thereon;
(v) the originals of any assumption, modification, extension or
guaranty agreement with evidence of recording thereon, if applicable;
(vi) Limited liability lender's title insurance policy, or, if
such policy has not been issued or local state law does not require it, a
written commitment or interim binder issued by the title insurance company
evidencing that the required title insurance coverage is in effect and
unconditionally guaranteeing the holder of the Mortgage Loan that such limited
liability lender's title insurance policy will be issued, or an attorney's title
opinion in jurisdictions where such evidence of title is customary as determined
by the Seller;
(vii) if the Mortgage Note or Mortgage or any other material
document or instrument relating to the Mortgage Loan has been signed by a person
on behalf of the Mortgagor, the original power of attorney or other instrument
that authorized and empowered
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such person to sign bearing evidence that such instrument has been recorded, if
so required, in the appropriate jurisdiction where the Mortgaged Property is
located as determined by Seller (or, in lieu thereof, a duplicate or conformed
copy of such instrument, together with a certificate of receipt from the
recording office, certifying that such copy represents a true and complete copy
of the original and that such original has been or is currently submitted to be
recorded in the appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located);
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage, if any; and
(ix) other such documents as the Buyer may reasonably require
(based on Seller's approved underwriting guidelines) after notice to the Seller
and the Custodian which the Custodian shall have consented to review.
As used herein, "Business Day" shall mean any day excluding Saturday, Sunday and
any day on which banks located in the states of New York or California are
authorized or permitted to close for business. From time to time, the Servicer
shall forward to the Custodian additional original documents evidencing an
assumption or modification of a Mortgage Loan approved by the Servicer. All
documents held by the Custodian as to each Mortgage Loan pursuant to this
Paragraph 1 are referred to herein as the "Custodian's Mortgage File". On the
Business Day immediately preceding the respective Purchase Date for each
Transaction, the Seller shall deliver to the Buyer and the Custodian an original
Notice of Sale and Trust Receipt, in the form attached hereto as Exhibit 2
(each, a "Trust Receipt"), executed by the Seller, with respect to all of the
Mortgage Loans to be sold to the Buyer in connection with such Transaction.
2. The Buyer hereby appoints the Custodian, in its independent corporate
capacity, as the custodian of the Buyer and any successor to or assignee of the
Buyer, and the Custodian hereby accepts and agrees to act as custodian for the
Buyer and any successor to or assignee of the Buyer in accordance with the terms
and conditions of this Agreement. With respect to each Custodian's Mortgage
File delivered to the Custodian, the Custodian is solely and exclusively the
custodian for the Buyer or its successor or assignee for all purposes
(including, but not limited to, the perfection of the security interest of the
Buyer in such Mortgage Loans granted by Seller pursuant to Paragraph 6 of the
Repurchase Agreement). The Custodian shall hold in its possession all
Custodian's Mortgage Files received by it from the Seller from time to time for
the sole and exclusive use and benefit of the Buyer and the Buyer's successors
and assignees as provided herein and, except as otherwise provided herein, shall
make disposition thereof only in accordance with the written instructions of the
Buyer. The Custodian shall segregate and maintain continuous custody of all
documents constituting the Custodian's Mortgage Files received by it in secure
and fire-resistant facilities, all in accordance with this Agreement and
customary standards for such custody.
3. When the Custodian has received from the Seller possession of each
Custodian's
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Mortgage File for the related Transaction, the Custodian shall verify that,
except as noted on the Schedule of Exceptions, if any, attached to the related
Trust Receipt:
(a) all documents described in subparagraphs (i)-(iii), (vi) and (ix)
of Section 1 of this Agreement are in the Custodian's possession;
(b) such documents have been reviewed by the Custodian and appear
regular on their face and relate to the Mortgage Loans;
(c) based only on the Custodian's examination of the foregoing
documents:
(i) the information set forth on the Mortgage Loan Schedule
with respect to each Mortgage Loan, to the extent of
items 1, 2, 3, 8, 9, 11 and 13 on Exhibit 1 accurately
reflects the information contained in the documents
contained in each Custodian's Mortgage File;
(ii) the Mortgage Note and the Mortgage each bear 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 certified copies of the Mortgage permitted under
paragraph l(ii), that such copies bear a reproduction
of such signature or signatures;
(iii) the principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount
of the Mortgage Note;
(iv) if the Mortgage Note does not name "[Seller]" as the
holder or payee, the Mortgage Note bears original
endorsements that complete the chain of ownership from
the original holder or payee to "[Seller]"; and
(v) if the Mortgage does not name "[Seller]" as the
mortgagee or beneficiary, the original of the
Assignment of Mortgage and any intervening assignments
of mortgage bear 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
paragraph 1 (ii), that such copies bear a reproduction
of such signature or signatures and that the Assignment
of Mortgage and any intervening assignments of mortgage
complete the chain of title from the originator to
"[Seller]";
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(d) each Mortgage Note has been endorsed as noted in paragraph 1(i)
herein and each Assignment of Mortgage has been completed as
noted in paragraph l(iii) herein; and
(e) the limited liability Lender's title insurance policy, or written
commitment to issue or interim binder for such policy, is for not
less than the original principal amount of the Mortgage Note.
In making such verification, the Custodian may rely conclusively on the Mortgage
Loan Schedule and the documents constituting the Custodian's Mortgage File, and
the Custodian shall have no obligation to independently verify the correctness
of such Mortgage Loan Schedule or any document. Upon completing such
verification, the Custodian shall advise the Buyer of its receipt of all such
Custodian's Mortgage Files and shall promptly forward to the Buyer the related
original trust receipt, in the form attached hereto as Exhibit 2 (each, a "Trust
Receipt") executed by the Custodian. If the Custodian has not received the
Custodian's Mortgage Files and Mortgage Loan Schedule in a sufficiently timely
manner to permit it to forward to the Buyer an original trust receipt for
delivery on the Purchase Date, it shall be the obligation of the Seller to
effect such delivery on the Purchase Date. If the Custodian determines from
such verification that any discrepancy or deficiency exists with respect to a
Custodian's Mortgage File, the Custodian shall note such discrepancy on the
Schedule of Exceptions attached to the Trust Receipt and the Custodian shall
deliver a copy of the Schedule of Exceptions to the Seller and the Buyer.
During the life of the Mortgage Loans, in the event the Custodian discovers any
defect with respect to the Custodian's Mortgage File, the Custodian shall give
written specification of such defect to the Seller and the Buyer. Except as
specifically provided above, the Custodian shall be under no duty to review,
inspect or examine such documents to determine that any of them are enforceable
or appropriate for their prescribed purpose.
The Seller shall be solely responsible for providing each and every
document required for each Custodian's Mortgage File to the Custodian in a
timely manner and for completing or correcting any missing, incomplete or
inconsistent documents, and the Custodian shall not be responsible or liable for
taking any such action, causing the Seller or any other person or entity to do
so or notifying the Buyer that any such action has or has not been taken.
The Custodian shall examine the documents received by the Custodian
hereunder and shall make the verification specifically provided above. However,
the Custodian shall not be responsible for, and shall not certify as to, the
value, form, substance, validity, perfection, priority, recordability,
genuineness, effectiveness or enforceability of any such documents or be
responsible for determining whether any of such documents comply with the
definition thereof set forth herein or in the Repurchase Agreement.
4. Each Trust Receipt, upon initial issuance by the Custodian to the
Buyer or reissuance upon transfer, shall be dated the date of issuance thereof
and shall evidence the receipt and possession of the Custodian's Mortgage File
by the Custodian on behalf of the holder
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of the Trust Receipt and the holder's right to possess the Custodian's Mortgage
File with respect to which that Trust Receipt is issued. Prior to due surrender
of a Trust Receipt pursuant to Paragraph 5, the Custodian shall treat the
individual person or entity in whose name any Trust Receipt is issued as the
individual person or entity entitled to possession of the Custodian's Mortgage
File evidenced by such Trust Receipt for all purposes whatsoever, subject to the
terms of this Agreement, and the Custodian shall not be affected by notice of
any facts to the contrary. No Trust Receipt shall be valid for any purpose
unless substantially in the form set forth in Exhibit 2 to this Agreement and
executed by manual signature of an authorized officer of the Custodian, and such
signature upon any Trust Receipt shall be conclusive evidence, and the only
evidence, that such Trust Receipt has been duly delivered under this Agreement.
Trust Receipts bearing the manual signatures of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Custodian shall bind the Custodian, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the delivery of those Trust
Receipts. Each Trust Receipt shall have attached thereto a schedule, in the
format of the Mortgage Loan Schedule, identifying the Mortgage Loans for which
the Trust Receipt is issued. The Custodian shall keep a register in which the
Custodian shall provide for the registration of transfers of Trust Receipts as
herein provided and in which it shall record the name and address of the person
to whom each Trust Receipt is issued. In the event that the Trust Receipt is
lost, stolen, mutilated or destroyed, the Custodian shall issue a new Trust
Receipt to the registered holder of such lost, stolen, mutilated or destroyed
Trust Receipt upon receiving a reasonably satisfactory (as determined by the
Custodian) commitment from such holder to indemnify the Custodian and hold the
Custodian harmless in respect of the issuance of such new Trust Receipt.
5. (a) The Custodian acknowledges that the Buyer may, but need not,
transfer its interest in all or any portion of the Mortgage Loans to one or more
subsequent purchasers. In the event the Buyer sells all or a portion of the
Mortgage Loans to one or more subsequent Buyers, the Buyer shall, at least one
(1) Business Day prior to the desired receipt date of one or more new Trust
Receipts in connection with such sale, deliver to the Custodian written notice
that such Buyer will transfer to a subsequent purchaser on the effective date
specified therein its interest in the Mortgage Loans identified on a schedule to
such notice (the "Notice Schedule") and on the date of such receipt surrender to
the Custodian the applicable Trust Receipt. The notice sent by the Buyer to the
Custodian shall specify (i) the name of the subsequent purchaser, (ii) the
address of the subsequent purchaser (which may be an address in care of the
Buyer), (iii) the date of sale, (iv) the original Trust Receipt or Trust
Receipts for such Mortgage Loans and (v) the Notice Schedule. Within one (1)
Business Day after receipt of a notice from the Buyer as descried herein, the
Custodian shall (i) upon the written direction of the Buyer, either deliver the
applicable Custodian's Mortgage Files to the subsequent purchaser or issue a
Trust Receipt in the name of such purchaser and (ii) make appropriate notations
in the Custodian's books and records reflecting that the Custodian's Mortgage
Files identified in the Notice Schedule are owned by such subsequent purchaser.
The Custodian shall then deliver to the Buyer a new Trust Receipt reflecting all
Mortgage Loans with respect to which the Custodian still holds the related
Custodian's Mortgage Files on behalf of the Buyer. Every Trust Receipt
presented or
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surrendered for transfer shall be duly endorsed by the holder thereof, or be
accompanied by a written instrument of transfer, duly executed by the holder
thereof and such holder's prospective transferee. No service charge against the
presenter of a Trust Receipt shall be made for any registration or transfer of
any Trust Receipt, but the Custodian may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer of any Trust Receipt, which shall be paid by the transferee. Each
Trust Receipt surrendered for registration of transfer shall be canceled by the
Custodian. Any purchaser of a Mortgage Loan shall succeed to all the rights and
obligations of the Buyer under this Agreement with respect to such Mortgage Loan
and the related Custodian's Mortgage File including in respect of payment of the
fees and expenses of the Custodian.
(b) Written instructions as to the method of shipment and shipper(s) that
the Custodian is directed to utilize in connection with (i) the transmission of
Custodian's Mortgage Files to Buyer in accordance with this Agreement or (ii)
the release of documents to Buyer in any Custodian's Mortgage Files pursuant to
Paragraph 6 hereof shall be included by the Buyer in the applicable instructions
or consent to release as applicable. The Seller will arrange for the provision
of such shipment services to Buyer 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 the Custodian's Mortgage Files as the Seller
deems appropriate. Without limiting the generality of the provisions of
Sections 16 and 17 hereof, 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 Seller, the Servicer or the Buyer, arising out of
actions of the Custodian consistent with the instructions of Buyer.
6. The Seller hereby assigns to the Buyer all of its right, title and
interest in, to and under the Servicing Agreement to the extent of the Mortgage
Loans. Notwithstanding such assignment, the Seller shall not be relieved hereby
of its obligations under the Servicing Agreement to the extent of the Mortgage
Loans, and the Seller alone (and not the Buyer) shall be obligated to the
Servicer under and to the extent provided in the Servicing Agreement. From and
after the date hereof, upon written notice to the Servicer from the Buyer
directing the Servicer to do so with respect to specified Mortgage Loans (upon
which notice the Seller authorizes the Servicer to conclusively rely), the
Servicer shall recognize the Buyer as the owner of the Mortgage Loans and will
service the Mortgage Loans for the Buyer. It is the intention of the Seller,
the Servicer and the Buyer that this Agreement will be a separate and distinct
servicing agreement having the provisions stated in this Section 6 and the
Servicing Agreement, provided, however, that the provisions of this Section 6
shall not be construed to limit the Servicer's right to payment (including, but
not limited to, payment of Servicing Fees, Additional Servicing Compensation and
termination fees under the Servicing Agreement) or to reimbursement from the
"Collection Account" as provided in the Servicing Agreement. Such agreement
shall be the entire agreement between the Servicer and the Buyer to the extent
of the Mortgage Loans and shall be binding upon and for the benefit of the
respective successors and assigns of the parties hereto. From and after the
date hereof and until the Seller repurchases the
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Mortgage Loans from the Buyer pursuant to the Repurchase Agreement, the Buyer
hereby authorizes and directs the Servicer to remit all income from, and all
proceeds of, the Mortgage Loans to the Seller and to otherwise deal with the
Seller in all respects pursuant to the Servicing Agreement as if the Seller were
the sole party in interest thereunder (as incorporated hereunder and made a part
hereof), in each case until otherwise notified in writing by the Buyer. The
Buyer shall so notify the Servicer only (a) with respect to Mortgage Loans that
are then subject to the Repurchase Agreement (it being that the Servicer is
hereby directed and authorized by Seller to accept the Buyer's statement thereof
as determinative and to conclusively rely thereon) and (b) in the event that the
Buyer determines that the Seller is in default under the Repurchase Agreement or
the related agreements, and such notification shall also constitute Buyer's
agreement to assume all obligations of "Owner" under the Servicing Agreement
from and after such date but not including any representations or warranties or
other obligations of T.A.R. Preferred Mortgage Corporation ("Preferred") as
such "Owner" which are then outstanding or accrued (for any breach of which
Preferred shall remain liable to the Servicer). As between the Buyer and the
Seller, the receipt of such income and proceeds by the Seller shall not create
nor imply any interest or right whatsoever of the Seller in or to the Mortgage
Loans or such income or proceeds. Notwithstanding the foregoing, the Seller
shall have no right to terminate or consent to the termination or resignation of
the Servicer as servicer of the Mortgage Loans or amend the Servicing Agreement
(as incorporated hereunder and made a part hereof) without the prior written
consent of the Buyer (which consent shall not be unreasonably withheld).
In the event that any specific Mortgage Loan document is required by the
Servicer pursuant to the Servicing Agreement, either (a) because such Mortgage
Loan has been paid in full and is to be released by the Servicer to the maker of
the respective Mortgage Note, or (b) to facilitate enforcement and collection
procedures with respect to any Mortgage Note, the Servicer shall send to the
Custodian and the Buyer a certificate in the form of Exhibit 3. Any Trust
Receipt issued while any documents are outstanding with the Servicer shall
reflect that the Custodian holds such documents as custodian for the Buyer
pursuant to this Agreement, but the Schedule of Exceptions shall specify that
the Custodian has released such documents to the Servicer, pursuant to this
paragraph. All documents so released to the Servicer shall be held by it in
trust for the benefit of the Buyer in accordance with the Servicing Agreement.
In the case of documents released pursuant to clause (b) above, the Servicer
shall return to the Custodian the Custodian's Mortgage File, or such other
documents that have been released to the Servicer, when the Servicer's need
therefor in connection with such enforcement or collection procedures no longer
exists, unless the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certification to this effect from the Servicer to the Custodian in
the form annexed hereto as Exhibit 3, the Servicer's receipt shall be released
by the Custodian to the Servicer, and the Custodian shall thereupon reflect any
such liquidation on the list of Mortgage Loans maintained by it pursuant to
Section 12 of this Agreement.
7. It is understood that Custodian will charge such fees for its services
under this Agreement as are set forth in a separate agreement between the
Custodian and the Seller, the payment of which, together with the Custodian's
expenses in connection herewith, shall be solely
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the obligation of the Seller (except as otherwise provided for herein.)
8. The Buyer, with or without cause, may (i) require the Custodian to
complete the endorsements on the Mortgage Notes, and to complete the Assignments
of Mortgages and/or (ii) upon sixty (60) days written notice, remove and
discharge the Custodian, or any successor Custodian thereafter appointed, from
the performance of its duties under this Agreement by written notice from the
Buyer to the Custodian or the successor Custodian, with a copy of such notice to
the Seller and the Servicer. Having given notice of such removal, the Buyer
shall promptly appoint by written instrument a successor Custodian reasonably
acceptable to Seller to act on behalf of the Buyer. One original counterpart of
such instrument shall be delivered to the Servicer, and one copy shall be
delivered to the Seller and one copy shall be delivered to the successor
Custodian. In the event of any such removal, the Custodian shall promptly
transfer to the successor Custodian, as directed by the Buyer, all of the
Custodian's Mortgage Files being administered under this Agreement and shall
complete the Assignments of Mortgage and endorse the Mortgage Notes to the
successor Custodian, if, and in the form, directed by the Buyer. In the event
of any such appointment without cause, the Seller shall not be responsible for
any costs of transfer or fees of the successor Custodian in excess of the fees
formerly paid to the Custodian. Notwithstanding the foregoing, if the Buyer
fails to appoint a successor Custodian within sixty (60) days after written
notice is given as provided above, the Custodian shall deliver all of the
Custodian's Mortgage Files to the Buyer at the expense of the Buyer upon the
expiration of such thirty-day period.
9. The Custodian may terminate its obligations under this Agreement upon
at least sixty (60) days written notice to the Seller, the Servicer and the
Buyer. In the event of such termination, the Seller shall appoint a successor
Custodian, subject to approval by the Buyer. If the Seller is unable to appoint
a successor Custodian within a reasonable period of time, the Buyer shall
appoint a successor Custodian. The payment of such successor Custodian's fees
and expenses shall be the sole responsibility of the Seller. Upon such
appointment, the Custodian shall promptly transfer to the successor Custodian,
as directed, all Custodian's Mortgage Files being administered under this
Agreement and shall complete the Assignments of Mortgage and endorse the
Mortgage Notes as, and if, requested by the Buyer. Notwithstanding the
foregoing, if the Seller and the Buyer are unable to appoint a successor
Custodian within 60 days after written notice of termination is given as
provided above, the Custodian shall deliver all of the Custodian's Mortgage
Files to the Buyer at the expense of the Seller upon the expiration of such 60
day period. The Custodian's obligations hereunder shall not in any event be
terminated until the Custodian's Mortgage Files have been delivered to the
successor Custodian or to the Buyer. In the event of termination by the
Custodian, the Custodian shall pay the cost of transporting the Mortgage Files
to the successor custodian or the Buyer, as applicable.
10. Upon reasonable prior written notice to the Custodian, the Buyer and
the Servicer, and their agents, accountants, attorneys and auditors will be
permitted during normal business hours to examine the Custodian's Mortgage
Files.
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11. The Custodian shall, at its own expense, maintain at all times during
the existence of this Agreement and keep in full force and effect fidelity
insurance and document hazard insurance. All such insurance shall be in
amounts, with standard coverage and subject to deductibles, as are customary for
insurance typically maintained by institutions that act as custodian in similar
transactions.
12. Monthly, on or before the tenth (10th) day of the month, as to
Mortgage Loans in the Custodian's possession at the end of the immediately
preceding month, and within one (1) Business Day of the reasonable request of
the Buyer or Seller at any other time, the Custodian shall provide to the Buyer
and the Servicer, a list of all the Mortgage Loans for which Custodian holds a
Custodian's Mortgage File pursuant to this Agreement and a list of documents
missing from each Custodian's Mortgage File. Such list may be in the form of a
copy of the Mortgage Loan Schedules with manual deletions to specifically denote
any Mortgage Loans paid off, liquidated or repurchased since the date of this
Agreement. In addition, twice monthly on such dates as Custodian and Buyer may
agree, the Custodian shall provide to the Buyer an aging report in a form to be
mutually agreed upon by Buyer and Custodian.
13. Upon the reasonable request, and at the expense, of the Buyer at any
time, the Custodian shall provide the Buyer with copies of the Mortgage Notes,
Mortgages, Assignments of Mortgage and other documents contained in the
Custodian's Mortgage File relating to one or more of the Mortgage Loans.
14. By execution of this Agreement, the Custodian warrants that it does
not currently hold, and during the existence of this Agreement shall not hold,
any adverse interest, by way of security or otherwise, in any Mortgage Loan, and
hereby waives and releases any such interest that it may have in any Mortgage
Loan as of the date hereof. Notwithstanding any other provisions of this
Agreement and without limiting the generality of the foregoing, 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 may otherwise have against all or any part of a Custodian's Mortgage
File, Mortgage Loan or proceeds of either.
15. Each authorized representative (an "Authorized Representative") of the
Buyer is authorized to give and receive notices, requests and instructions and
to deliver certificates and documents in connection with this Agreement on
behalf of the Buyer and the specimen signature for each such Authorized
Representative of the Buyer initially authorized hereunder is set forth on
Exhibit 4 hereof. From time to time, the Buyer shall deliver to the Custodian a
revised Exhibit 4, reflecting changes in the information previously given, but
the Custodian shall be entitled to rely conclusively on the last Exhibit 4 until
receipt of a superseding Exhibit 4. Each Authorized Representative of the
Seller is authorized to give and receive notices, requests and instructions and
to deliver certificates and documents in connection with this Agreement on
behalf of the Seller and the specimen signature for each such Authorized
Representative of the Seller initially authorized hereunder is set forth on
Exhibit 5 hereof. From time to time, the Seller shall deliver to the Custodian
a revised Exhibit 5, reflecting changes in the information
10
previously given, but the Custodian shall be entitled to rely conclusively on
the last Exhibit 5 until receipt of a superseding Exhibit 5. Each Authorized
Representative of the Servicer is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Agreement on behalf of the Servicer and the specimen
signature for each such Authorized Representative of the Servicer and its agent
initially authorized hereunder is set forth on Exhibit 6 hereof. From time to
time, the Servicer shall deliver to the Custodian a revised Exhibit 6,
reflecting changes in the information previously given, but the Custodian shall
be entitled to rely conclusively on the last Exhibit 6 until receipt of a
superseding Exhibit 6.
16. The Seller hereby agrees to reimburse, indemnify and hold harmless the
Custodian, its directors, officers, employees or agents from and against any and
all liability, loss cost and expense, including reasonable fees and expenses of
counsel, arising from or in connection with or relating to the Custodian's
execution and performance of this Agreement, unless such liability, loss, cost
or expense was imposed on, incurred by or asserted against the Custodian because
of the breach by the Custodian of its obligations hereunder, which breach was
caused by lack of good faith, negligence or willful misconduct on the part of
the Custodian or any of its directors, officers, employees or agents; provided
that, in the event that any liability is imposed by a final judgment by a court
of competent jurisdiction on the Custodian due to the negligence of the
Custodian or any of its directors, officers, employees or agents, which court
has determined that other third parties shared the liability of the Custodian
due to their contributory negligence, then the Seller shall reimburse the
Custodian for the amount, if any, paid by the Custodian in excess of the
percentage of such liability attributable to the negligence of the Custodian or
any of its directors, officers, employees or agents to the extent such amount
has not been recovered and is not recoverable by the Custodian from any third
party. The foregoing indemnification shall survive any termination of this
Agreement and the Custodian hereunder.
17. The duties and obligations of the Custodian shall be determined solely
by the express provisions of this Agreement. The Custodian shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement or as set forth in a written amendment to this
Agreement executed by the parties hereto or their successors or assigns. The
Custodian shall not assign, transfer, pledge or grant a security interest in any
of its rights, benefits or privileges hereunder, nor shall the Custodian
delegate or appoint any other person or entity to perform or carry out any of
its duties, responsibilities or obligations under this Agreement (except as
provided in Paragraph 17(g) hereof) without the prior written consent of the
Seller and the Buyer, which consent shall not be unreasonably withheld. No
representations, warranties, covenants (other than those expressly made by the
Custodian in this Agreement) or obligations of the Custodian shall be implied
with respect to this Agreement or the Custodian's services hereunder. Without
limiting the generality of the foregoing, the Custodian:
(a) shall have no duties or obligations other than those specifically set
forth herein
11
or as may subsequently be agreed in writing by the parties hereto, shall be
under no responsibility or duty with respect to the disposition of any Mortgage
Loan documents while such Mortgage Loan documents are not in its possession and
shall use the same degree of care and skill as is reasonably expected of
financial institutions acting in comparable capacities;
(b) may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any request, instructions,
certificate, opinion or other document or, to the extent permitted hereby,
communication by fax furnished to the Custodian, reasonably believed by the
Custodian to be genuine and to have been signed or presented or, to the extent
permitted hereby, communicated by fax by the proper party or parties and
conforming to the requirements of this Agreement. The Custodian may rely upon
the validity of documents and, to the extent permitted hereby, communications by
fax executed by an Authorized Representative of the Seller, the Servicer or the
Buyer, delivered to it without investigation as to their authenticity or legal
effectiveness, and the Seller, will hold the Custodian harmless from any claims
which may arise or be asserted against the Custodian because of the invalidity
of any such documents or communications by fax. The Custodian shall not be
responsible to the Buyer or any other party for recitals, statements or
warranties or representations of the Seller or the Servicer contained herein, or
in any document or be bound to ascertain or inquire as to the performance or
observance of any of the terms of this Agreement or any other agreement on the
part of any party, except as may otherwise be specifically set forth herein;
(c) may request instructions from the Buyer with respect to any act,
action or failure to act in connection with this Agreement, and shall be
entitled to refrain from taking such action and continue to refrain from acting
unless and until the Custodian shall have received written instructions from the
Buyer without incurring any liability thereof or to the Buyer, the Seller or any
other person;
(d) if the Custodian shall have at any time received conflicting
instructions from the Buyer and the Seller with respect to any of the
Custodian's Mortgage Files and the conflict between such instructions cannot be
resolved by reference to the terms of this Agreement, the Custodian shall be
entitled to rely on the instructions of the Buyer;
(e) may consult counsel satisfactory to it (including counsel for the
Seller and the Buyer) and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered, or
omitted by it hereunder in good faith and in furtherance of its duties
hereunder, in accordance with the opinion of such counsel;
(f) shall not be liable for any error of judgment, or for any act done or
step taken or omitted by it, in good faith, or for any mistake of fact or law,
or for anything that it may do or refrain from doing in connection therewith,
except in the case of its grossly negligent performance or omission or wilful
misconduct; and
(g) may execute any of the trusts or powers hereunder or perform any
duties
12
hereunder either directly or through agents or attorneys, provided, however,
that the execution of such trusts or powers by any such agents or attorneys
shall not diminish, or relieve the Custodian for, responsibility therefor to the
same degree as if the Custodian itself had executed such trusts or powers.
18. For the purpose of facilitating the execution of this Agreement and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed to be an original, and together
shall constitute and be one and the same instrument.
19. The Buyer shall have the right, without the consent of the Custodian,
the Seller or the Servicer, to assign, in whole or in part, its interests under
this Agreement in all of the Mortgage Loans subject to any Transaction, and
designate any person to exercise any rights of the Buyer, hereunder, and the
assignee or designee shall accede to the rights and obligations hereunder of the
Buyer with respect to such Mortgage Loans. All references to the Buyer shall be
deemed to include its assignee or designee. In connection with any such
assignment, the Custodian may require that arrangements reasonably satisfactory
to it be made for the exchange of previously executed and outstanding Trust
Receipts for a Trust Receipt representing such assignment.
20. This Agreement shall terminate with respect to any Transaction upon
the earlier of (a) the repurchase of all of the Mortgage Loans subject to such
Transaction by the Seller pursuant to the Repurchase Agreement, which repurchase
shall be evidenced by a notice from the Buyer to the Custodian and the Servicer
stating that beneficial ownership of the Mortgage Loans has been transferred to
the Seller, and following such notice from the Buyer, the Custodian and the
Servicer are authorized to follow the Seller's instructions with respect
thereto, or (b) the Buyer's election to obtain possession of the Mortgage Loans
subject to a Transaction following an Event of Default (as defined in the
Repurchase Agreement) by the Seller, which election shall be evidenced by a
notice from the Buyer to the Custodian stating that the Seller is in default
under the Repurchase Agreement, a copy of which notice shall be simultaneously
delivered to the Seller and the Servicer, and delivery of the Custodian's
Mortgage Files pursuant to the Buyer's instructions.
21. Neither the failure nor any delay on the part of any 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 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 party or parties purportedly granting such waiver.
22. The provisions of this Agreement are independent of and severable from
each
13
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.
23. This Agreement constitutes the entire agreement and understanding of
the parties with respect to the matters and transactions contemplated by this
Agreement and supersedes any prior agreement and understandings with respect to
those matters and transactions.
24. This Agreement shall be construed in accordance with the laws of the
State of California without regard to any conflict of laws provisions and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
25. This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm, micro-
card, miniature photographic or other similar process. Any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
26. The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
27. 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 (i) sent by telecopy, (ii) delivered in person or (iii) transmitted by
a recognized private (overnight) courier service, and shall be addressed as set
forth in the front page hereof (or such other address as may hereafter be
furnished to the other parties hereto, in writing, by such party wishing to
change its address).
28. For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and
14
other subdivisions without reference to a document are to designated
Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a Section is
a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
15
IN WITNESS WHEREOF, Seller, Servicer, Buyer and the Custodian have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
T.A.R. PREFERRED MORTGAGE CORPORATION,
as Seller
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
----------------------------------------
Title: C.E.O.
----------------------------------------
ADVANTA MORTGAGE CORP. USA,
as Servicer
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Buyer
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: Vice President
----------------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Custodian
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
IN WITNESS WHEREOF, Seller, Servicer, Buyer and the Custodian have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
T.A.R. PREFERRED MORTGAGE CORPORATION,
as Seller
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
ADVANTA MORTGAGE CORP. USA,
as Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: SVP
----------------------------------------
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Buyer
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Custodian
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
IN WITNESS WHEREOF, Seller, Servicer, Buyer and the Custodian have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
T.A.R. PREFERRED MORTGAGE CORPORATION,
as Seller
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
ADVANTA MORTGAGE CORP. USA,
as Servicer
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Buyer
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Custodian
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxx
-------------------------------------------
Title: AVP
-------------------------------------------
EXHIBIT 1
CONTENTS OF LOAN SCHEDULE
The Mortgage Loan Schedule shall include each of the following items with
respect to each Mortgage Loan (capitalized terms not defined in this Custody
Agreement have the meanings given to them in the Mortgage Loan Purchase
Agreement dated as of March 31, 1996 between the Buyer and the Seller and the
Custodial Agreement of even date among the Buyer, the Seller and the Custodian):
(1) the Seller's Mortgage Loan identifying number; (2) the Mortgagor's
name; (3) the street address of the Mortgaged Property including the state
and the zip code; (4) a code indicating whether the Mortgaged Property is
owner occupied; (5) the number and type of residential units constituting
the Mortgaged Property; (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule, and if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(7) the Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate
at the time of origination; (9) the Due Date for the first payment on the
Mortgage Loan; (10) the stated maturity date; (11) the amount of the
Monthly Payment at the time of origination; (12) the last Due Date for
which a Monthly Payment was actually applied to the outstanding principal
balance; (13) the original principal amount of the Mortgage Loan; (14) the
unpaid principal balance of the Mortgage Loan; (15) a code indicating the
purpose of the Mortgage Loan; (16) the Mortgagor's debt to income ratio;
(17) the Mortgagor's credit score; (18) the outstanding principal balance
of the First Lien; and (19) the Combined LTV at origination. With respect
to the Mortgage Loans described in such schedule in the aggregate, the
Mortgage Loan Schedule shall set forth the following information, as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
EXHIBIT 2
TRUST RECEIPT
TRANSACTION NUMBER ___________
___________________, 199____
To: CF First Boston Mortgage Capital Corp. No. of Mortgage Loans
Five World Trade Center Unpaid Principal
Xxx Xxxx, Xxx Xxxx 00000 Balance $____________
Attn: Xx. Xxxxxxxxx Xxxxxxx
Facsimile:
Reference is made to the Custody Agreement among CS First Boston Mortgage
Capital Corp. (the "Buyer"), T.A.R. Preferred Mortgage Corporation (the
"Seller"), Advanta Mortgage Corp. U.S.A., as servicer and Bankers Trust Company
of California, N.A., as custodian (the "Custodian") dated as of October 2, 1996
(the "Custody Agreement"), pursuant to which the Seller has delivered to the
Custodian, with respect to each Mortgage Loan set forth on Schedule A hereto
(the "Mortgage Loan Schedule"), the documents set forth in Section 2 of the
Custody Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan Schedule
and except as otherwise noted on the Schedule of Exceptions set forth on
Schedule B hereto, the Custodian confirms that (1) the Custodian has received
all of the documents required to be delivered to the Custodian pursuant to items
(i) through (iii), (vi) and, to the extent provided, (iv), (v) and (vii) of
Section 1 of the Custody Agreement, (2) the Custodian has reviewed each
Custodian's Mortgage File in accordance with Section 3 of the Custody Agreement,
and the documents contained in each Custodian's Mortgage File conform to the
requirements set forth in Section 3 of the Custody Agreement, and (3) the
Custodian has physical possession of the documents in each Custodian's Mortgage
File and will continue to hold each Custodian's Mortgage File as bailee of and
agent for, and for the sole and exclusive use and benefit of, the addressee of
this Trust Receipt, until such addressee directs the Custodian to the contrary
in accordance with the Custody Agreement.
The Custodian shall examine the documents received by the Custodian
hereunder and shall make the verification specifically provided above. However,
the Custodian shall not be responsible for, and shall not certify as to, the
value, form, substance, validity, perfection, priority, recordability,
genuineness, effectiveness or enforceability of any such documents or be
responsible for determining whether any of such documents comply with the
definition thereof set forth herein or in the Repurchase Agreement.
All terms used herein and not otherwise defined herein shall have the
respective meaning ascribed to such term in the Custody Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
By: ______________________________
Name: ______________________________
Title: ______________________________
SCHEDULE A
MORTGAGE LOAN SCHEDULE
SCHEDULE B
SCHEDULE OF EXCEPTIONS
EXHIBIT 3
REQUEST FOR RELEASE OF DOCUMENTS
To: [CUSTODIAN]
Re: Custody Agreement, dated as of ___________, 1996, among CS First
Boston Mortgage Capital Corp. ("Buyer"), ____________________________
("Seller"), _________________________ ("Servicer") and
_____________________ ("Custodian")
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Buyer pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the (Custodian's
Mortgage File/[specify documents]) for the Mortgage Loan described below, for
the reason indicated.
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Mortgage Loan Paid in Full
(Servicer hereby certifies that all amounts received in
connection therewith will be held in trust for the Buyer as
provided in the Master Repurchase Agreement, dated as of
________________, 1996, between the Seller and the Buyer (the
"Repurchase Agreement").
____ 2. Mortgage Loan Liquidated by
(Servicer hereby certifies that all proceeds of foreclosure,
insurance or other liquidation have been finally received and
will be held in trust for the Buyer as provided in the Repurchase
Agreement.)
____ 3. Mortgage Loan in Foreclosure.
____ 4. Other (explain) _____________________________________________________
_____________________________________________________
If box 1 or 2 above is checked, and if all or part of the Custodian's
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your possession
relating to the above specified Mortgage Loan.
2
If box 3 or 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
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Date: ________________________________________
[Release of documents consented to:
[BUYER] Shipping Instructions:
----------------------
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Date: ________________________________________]
Documents returned
to Custodian (Item 3 or 4):
[CUSTODIAN]
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Date: ________________________________________
EXHIBIT 4
AUTHORIZED REPRESENTATIVES OF THE BUYER
Name Specimen Signature
----------------------------- -------------------------------
----------------------------- -------------------------------
----------------------------- -------------------------------
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF THE SELLER
Name Specimen Signature
----------------------------- -------------------------------
----------------------------- -------------------------------
----------------------------- -------------------------------
EXHIBIT 6
AUTHORIZED REPRESENTATIVES OF THE SERVICER
Name Specimen Signature
EXHIBIT C
TRANSACTION NOTICE
[Date]
CS First Boston Mortgage Transaction No.____________
Capital Corp. Requested Purchase Price: $____
00 Xxxx 00xx Xxxxxx Requested Purchase Date: $______
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned executes and delivers this Transaction Notice pursuant to
the requirements of the Master Repurchase Agreement, dated as of, 1996 (the
"Agreement") between CS First Boston Mortgage Capital Corp. ("Buyer") and T.A.R.
Preferred Mortgage Corporation ("Seller") and in connection with the submission
for sale thereunder on ___________________, 199___ (the "Purchase Date") of the
mortgage loans ("Mortgage Loans") identified on the Schedule of Mortgage Loans
attached hereto as Schedule I. The Mortgage Files are held by Bankers Trust
Company of California, N.A. ("Custodian") pursuant to the Custody Agreement. All
capitalized terms used in this Transaction Notice without definition shall have
the same meanings herein as they have in the Agreement.
Seller hereby represents and certifies to Buyer as follows:
1. As of this date, Seller is in compliance with all of the terms
and conditions of the Agreement.
2. Except as otherwise previously disclosed in writing to Buyer,
Seller's representations and warranties set forth in the Agreement, and any
other related document are true and accurate as of the date of this Certificate.
3. The Mortgage Loans, which are identified on [Schedule I] [the
computer file enclosed herewith], satisfy the requirements of the eligibility
set forth in the Agreement and all related agreements between Buyer and Seller.
4. Pursuant to the purchase by Buyer of any or all of the Mortgage
Loans, all of the Seller's right (including the power to convey title thereto),
title and interest in and to each document constituting the Mortgage File and
the Supplemental Mortgage File, delivered to and/or held by Custodian (the
Mortgage File) or, held by or on behalf of Seller with respect to each purchased
Mortgage Loan (the Supplemental Mortgage File), shall be transferred, assigned,
set over and otherwise conveyed to Buyer.
T.A.R. PREFERRED MORTGAGE CORPORATION
By: _______________________________
Name: _______________________________
Title: _______________________________
C-1
ANNEX II
Names and Addresses for Communications Between Parties
for C.S. First Boston
Xxxxxxx XxXxxxx
C.S. First Xxxxxx Xxxxxxxxxxx Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
for T.A.R. Preferred Mortgage Corporation
Xx. Xxxx X. Xxxxxxxxx
T.A.R. Preferred Mortgage Corporation
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
