EXHIBIT 10.16
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CS FIRST BOSTON MORTGAGE CAPITAL CORP.
Purchaser
and
T.A.R. PREFERRED MORTGAGE CORPORATION
Company
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Custodian
and
ADVANTA MORTGAGE CORP. USA
Servicer
____________________________
CUSTODIAL AGREEMENT
As of August 1, 1996
____________________________
Conventional Fixed Rate Residential Second Lien Mortgage Loans
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TABLE OF CONTENTS
Page
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Section 1. Definitions................................. 1
Section 2. Delivery of Custodial Files................. 3
Section 3. Trust Receipt of the Custodian.............. 5
Section 4. Obligations of the Custodian................ 5
Section 5. Final Certification......................... 6
Section 6. Future Defects.............................. 6
Section 7. Release for Servicing....................... 6
Section 8. Limitation on Release....................... 7
Section 9. Release for Payment......................... 7
Section 10. Fees of Custodian........................... 7
Section 11. Removal of Custodian........................ 7
Section 12. Transfer of Custodial Files Upon Termination 8
Section 13. Examination of Custodial Files.............. 9
Section 14. Insurance of Custodian...................... 9
Section 15. Counterparts................................ 9
Section 16. Periodic Statements......................... 9
Section 17. Governing Law............................... 9
Section 18. Copies of Mortgage Documents................ 10
Section 19. No Adverse Interest of Custodian............ 10
Section 20. Termination of Custodian.................... 10
Section 21. Term of Agreement........................... 10
Section 22. Notices..................................... 10
Section 23. Successors and Assigns...................... 11
Section 24. Indemnification of Custodian................ 11
Section 25. Indemnification of Purchaser................ 11
Section 26. Reliance of Custodian....................... 12
Section 27. Transmission of Custodial Files............. 12
Section 28. Authorized Representatives.................. 13
Section 29. Reproduction of Documents................... 13
Section 30. Amendment................................... 13
Section 31. Reserve Fund................................ 14
EXHIBITS
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EXHIBIT 1 FORM OF TRUST RECEIPT
EXHIBIT 2 FORM OF FINAL CERTIFICATION
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF
DOCUMENTS AND RECEIPT
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF COMPANY
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF PURCHASER
EXHIBIT 6 AUTHORIZED REPRESENTATIVES OF CUSTODIAN
EXHIBIT 7 FORM OF NOTICE OF SALE
EXHIBIT 8 FORM OF OPINION OF COUNSEL OF THE CUSTODIAN
EXHIBIT 9 MORTGAGE LOAN SCHEDULE
EXHIBIT 10 FORM OF LOST NOTE AFFIDAVIT
EXHIBIT 11 AUTHORIZED REPRESENTATIVES OF SERVICER
EXHIBIT 12 CONFIRMATION OF RECEIPT OF RESERVE FUNDS
THIS CUSTODIAL AGREEMENT, dated as of August 1, 1996, by and among CS
First Boston Mortgage Capital Corp., having an address at Park Avenue Plaza, ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), T.A.R. Preferred
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Mortgage Corporation, having an address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), Advanta Mortgage Corp. USA having an
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address at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Servicer") and Bankers Trust Company of California, N.A., having an address at
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▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Custodian");
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W I T N E S S E T H
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WHEREAS, the Purchaser has agreed to purchase, from time to time, from
the Company and the Company has heretofore agreed to sell, from time to time, to
the Purchaser certain mortgage loans (each a "Mortgage Loan") on a servicing
released basis pursuant to a Mortgage Loan Purchase Agreement, by and between
the Purchaser and the Company (the "Purchase Agreement"), a Seller's Warranties
Agreement, by and between the Purchaser and Company, and a Loan Servicing
Agreement, by and among the Purchaser, the Company and the Servicer (the
"Servicing Agreement"), each dated as of the date hereof;
WHEREAS, as determined by the Purchaser, the Company, the Purchaser or
one or more designees of the Purchaser will retain record title to the Mortgage
Loans; and
WHEREAS, the Custodian is a national banking association chartered
under the laws of the United States of America and regulated by the Comptroller
of the Currency and is otherwise authorized to act as Custodian pursuant to this
Agreement. The Purchaser desires to have the Custodian take possession of the
Mortgages and Mortgage Notes, along with certain other documents specified
herein, as the Custodian of the Purchaser and any future purchaser, in
accordance with the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
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Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Servicing Agreement.
Agreement: This Custodial Agreement and all amendments and
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attachments hereto and supplements hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of
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transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Closing Date: The dates or dates on which the Purchaser, from time to
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time, shall purchase and the Company, from time to time, shall sell the Mortgage
Loans listed on the related Mortgage Schedule with respect to the related
Closing Date. The Closing Date for such Mortgage Loans shall be as respectively
set forth on the Mortgage Loan Schedule or such other date or dates as are
mutually agreed upon by the parties.
Company: T.A.R. Preferred Mortgage Corporation, or its successor in
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interest or assigns.
Confirmation of Receipt of Reserve Funds: The confirmation of receipt
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of the Reserve Fund amount delivered by the Custodian to the Purchaser, in the
form of Exhibit 12 hereto.
Custodian: Bankers Trust Company of California, N.A., or its
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successor in interest or assigns, or any successor to the Custodian under this
Agreement as herein provided.
Custodial File: As to each Mortgage Loan, any mortgage loan documents
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which are delivered to the Custodian or which at any time come into the
possession of the Custodian.
Final Certification: A final certification as to each Mortgage Loan,
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which Final Certification is delivered to the Purchaser by the Custodian in the
form annexed hereto as Exhibit 2.
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Mortgage: The mortgage, deed of trust or other instrument securing a
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Mortgage Note, which creates a second lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto as
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Exhibit A, such schedule setting forth the following information with respect to
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each Mortgage Loan: (1) the Company'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 as of the Cut-off Date; (9)
the Due Date for the first payment on the Mortgage Loan; (10) the stated
maturity date; (11) the amount of the Monthly Payment as of the date 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 principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date, after deduction of payments of principal
due on or before the Cut-off Date, whether or not collected; (15) the Mortgage
Interest Rate minus the Servicing Fee as of the Cut-off Date; (16) a code
indicating the purpose of the Mortgage Loan; (17) the Mortgagor's
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debt to income ratio; (18) the Mortgagor's credit score; and (19) the
outstanding principal balance of the First Lien. With respect to the Mortgage
Loans 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.
Mortgage Note: The note or other evidence of the indebtedness of a
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Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
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evidenced by a Mortgage Note.
Opinion of Counsel: An opinion of counsel to the Custodian, in the
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form of Exhibit 8 hereto, to be delivered to the Purchaser upon execution of
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this Agreement.
Person: Any individual, corporation, partnership, joint venture,
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association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Purchaser: CS First Boston Mortgage Capital Corp., or its successor
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in interest or assigns, or any successor to the Purchaser under the Servicing
Agreement as therein provided.
Qualified Insurer: An insurance company duly qualified as such under
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the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by FNMA or
FHLMC, and whose claims-paying ability is rated in one of the two highest rating
categories by a Rating Agency with respect to primary mortgage insurance and in
one of the two highest rating categories by A.M. Best Co., Inc. with respect to
hazard and flood insurance.
Servicer: Advanta Mortgage Corp. USA, any affiliate, or its successor
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in interest or assigns.
Trust Receipt: A trust receipt as to each delivery of Mortgage Loans,
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which Trust Receipt is delivered to the Purchaser by the Custodian in the form
annexed hereto as Exhibit 1.
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Section 2. Delivery of Custodial Files.
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The Company shall cause to be delivered and released to the Custodian
at least two (2) Business Days prior to each Closing Date the following original
documents pertaining to each of the related Mortgage Loans identified in the
related Mortgage Loan Schedule annexed hereto as Exhibit 9 as amended on each
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Closing Date (such information shall also be delivered to the Custodian on
computer readable magnetic tape or disk):
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(a) The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________ without recourse" and signed in the name
of the Company by an authorized officer (in the event that the Mortgage Loan was
acquired by the Company in a merger, the signature must be in the following
form: "[Company], successor by merger to [name of predecessor]"; and in the
event that the Mortgage Loan was acquired or originated by the Company while
doing business under another name, the signature must be in the following form:
"[Company], formerly known as [previous name]");
(b) The original of any guarantee executed in connection with the
Mortgage Note (if any);
(c) The original Mortgage, with evidence of recording thereon. If in
connection with any Mortgage Loan, the Company cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Company shall deliver or cause to be delivered
to the Custodian, a photocopy of such Mortgage, together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of the
Company stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Custodian upon receipt thereof by the Company; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office or by
the title insurance company that issued the title policy to be a true and
complete copy of the original recorded Mortgage;
(d) The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon;
(e) The original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording in blank. If the Mortgage Loan was
acquired by the Company in a merger, the Assignment of Mortgage must be made by
"[Company], successor by merger to [name of predecessor]." If the Mortgage Loan
was acquired or originated by the Company while doing business under another
name, the Assignment of Mortgage must be by "[Company], formerly known as
[previous name];"
(f) Originals of all intervening assignments of the Mortgage with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the Company shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Company stating
that such intervening assignment of mortgage has been dispatched to the
appropriate public
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recording office for recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office or by the title insurance
company that issued the title policy to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Company; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening assignment
is lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a true
and complete copy of the original recorded intervening assignment;
(g) The original limited liability lender's title insurance policy;
(h) Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage; and
(i) Copies of all mortgage loan documents for the First Lien mortgage
loan.
From time to time, the Company shall forward to the Custodian
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
Company, in accordance with the terms of the Servicing Agreement. All such
mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File".
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The Company shall promptly, upon request or direction by Purchaser,
submit for recording, in the appropriate public office for real property
records, each assignment referred to in Section 2(e) and (f) above.
Section 3. Trust Receipt of the Custodian; Confirmation of Receipt of
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Reserve Fund.
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On the related Closing Date, the Custodian shall deliver to the
Purchaser a Trust Receipt certifying receipt of a Mortgage Note and Assignment
of Mortgage for each Mortgage Loan on the related Mortgage Loan Schedule. The
Custodian makes no representations as to and shall not be responsible to verify
(i) the validity, legality, enforceability, sufficiency, due authorization,
recordability or genuineness of any Mortgage Note or Assignment of Mortgage or
any of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) the accuracy of the aggregate outstanding principal balance of the
Mortgage Loans which will be provided by the Purchaser.
On the Business Day following the related Closing Date, the Custodian
shall deliver to the Purchaser a Confirmation of Receipt of Reserve Funds
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Section 4. Obligations of the Custodian.
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With respect to the Mortgage Note, the Mortgage and the Assignment of
Mortgage and other documents constituting each Custodial File which is delivered
to the Custodian or which come into the possession of the Custodian, the
Custodian is the Custodian for the Purchaser exclusively. The Custodian shall
hold all mortgage documents received by it constituting the Custodial File for
the exclusive use and benefit of the Purchaser, and shall make disposition
thereof only in accordance with the Agreement and the instructions furnished by
the Purchaser. The Custodian shall segregate and maintain continuous custody of
all mortgage documents constituting each Custodial File in secure and fireproof
facilities in accordance with customary standards for such custody.
Section 5. Final Certification.
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Within 30 days after each Closing Date, the Custodian shall ascertain
that all documents referred to in paragraphs (a), (c), (e), (f) and (g) of
Section 2, and to the extent provided in the Custodial Files (b), (d), and (h)
of Section 2 are in its possession, and shall deliver to the Purchaser a Final
Certification to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such exception report as not covered by
such certification): (i) all documents referred to in paragraphs (a), (c), (e),
(f) and (g) of Section 2, and to the extent provided in the Custodial Files (b),
(d), and (h) of Section 2 are in its possession; (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (1), (2), (3), (10), (11), and (13) of the
definition of Mortgage Loan Schedule respecting such Mortgage Loan is correct;
and (iv) each Mortgage Note has been endorsed as provided in Section 2 of this
Agreement. The Custodian makes no representations as to and shall not be
responsible to verify (i) the validity, legality, enforceability, sufficiency,
due authorization, recordability, or genuineness of any document in any
Custodial File or any of the Mortgage Loans identified on the Mortgage Loan
Schedule or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether a binder or title insurance policy is
required to be delivered pursuant to Section 2(g).
Section 6. Future Defects.
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During the term of this Agreement, if the Custodian discovers any
defect with respect to the Custodial File, the Custodian shall give written
specification of such defect to the Company, the Servicer and the Purchaser.
Section 7. Release for Servicing.
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From time to time and as appropriate for the foreclosure or servicing
of any of the Mortgage Loans, the Custodian shall, upon written receipt from the
Servicer of a request for release of documents and receipt in the form annexed
hereto as Exhibit 3, release to the Servicer the related Custodial File or the
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documents set forth in such request and receipt. All
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documents so released to the Servicer shall be held by the Servicer in trust for
the benefit of the Purchaser in accordance with the terms of the Servicing
Agreement. The Servicer shall return to the Custodian the Custodial File or
other such documents when the Servicer's need therefor in connection with such
foreclosure or servicing no longer exists, unless the Mortgage Loan shall be
liquidated in which case, upon receipt of an additional request for release of
documents and receipt certifying such liquidation from the Servicer to the
Custodian in the form annexed hereto as Exhibit 3, a copy of the Servicer's
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request and receipt submitted pursuant to the first sentence of this Section 7
shall be released by the Custodian to the Servicer.
Section 8. Limitation on Release.
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The foregoing provision respecting release to the Servicer of the
Custodial Files and documents by the Custodian upon request by the Servicer
shall be operative only to the extent that at any time the Servicer shall not
request and the Custodian shall not release to the Servicer Custodial Files or
documents (including those requested) pertaining to more than 15 Mortgage Loans
at the time being serviced by the Servicer under the Servicing Agreement. Any
additional Custodial Files or documents requested to be released by the Servicer
may be released only upon written authorization of the Purchaser. The
limitations of this paragraph shall not apply to the release of Custodial Files
to the Servicer under Section 9 below.
Section 9. Release for Payment.
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Upon the repurchase or rejection of any Mortgage Loan pursuant to the
Seller's Warranties Agreement, or upon the payment in full of any Mortgage Loan,
and upon receipt by the Custodian of the Servicer's request for release of
documents and receipt in the form annexed hereto as Exhibit 3 (which
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certification shall include a statement to the effect that all amounts received
in connection with such payment or repurchase have been credited to the
Custodial Account if provided in the Servicing Agreement), the Custodian shall
promptly release the related Custodial File to the Servicer.
Section 10. Fees of Custodian.
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The Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between the Custodian and the
Company, the payment of which fees, together with the Custodian's expenses in
connection herewith, shall be solely the obligation of the Company.
Section 11. Removal of Custodian.
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The Purchaser, with or without cause, may (i) require the Custodian to
complete the endorsements on the Mortgage Notes and to complete the Assignments
of Mortgage, and/or (ii) upon at least 30 days' notice remove and discharge the
Custodian from the performance of its duties under this Agreement by written
notice from the Purchaser to the Custodian, with a copy to the Company and the
Servicer. Having given notice of such removal, the Purchaser promptly shall
appoint a successor Custodian to act on behalf of the
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Purchaser by written instrument, one original counterpart of which instrument
shall be delivered to the Purchaser, with a copy to the Company and the Servicer
and an original to the successor Custodian. In the event of any such removal,
the Purchaser shall deliver all Trust Receipts and Final Certifications to the
Custodian which were not previously delivered to the Custodian, and the
Custodian shall promptly transfer to the successor Custodian, as directed by the
Purchaser, all Custodial Files being administered under this Agreement, and the
Purchaser shall prepare or cause to be prepared, at the expense of the
Purchaser, the necessary assignment documents and the Custodian shall complete
and execute such assignments and endorse the Mortgage Notes to the successor
Custodian if the endorsements on the Mortgage Notes and the Assignments of
Mortgages have been completed in the name of the Custodian as directed by the
Purchaser. In the event that the Purchaser terminates the Custodian without
cause, then the Purchaser shall bear the out-of-pocket costs incurred as a
result of the transfer and delivery of the Custodial Files to a successor
custodian. In all other instances, the Company shall bear such costs.
Section 12. Transfer of Custodial Files Upon Termination.
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Upon receipt by the Custodian of written notice from the Purchaser, at
the cost and expense of the Purchaser, the Custodian shall release to such
persons as the Purchaser shall designate the Custodial Files relating to such
Mortgage Loans as the Purchaser shall request, and shall assign the Mortgages
and endorse the Mortgage Notes as the Purchaser shall request.
In the event the Purchaser sells all or a portion of the Mortgage
Loans to a purchaser (the "Transferee"), the Purchaser shall give the Custodian
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one (1) Business Day notice prior to the sale of any or all of the Mortgage
Loans (the "Sold Mortgage Loans"). Such notice of sale (the "Notice of Sale")
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shall be in the form attached hereto as Exhibit 7 and a Mortgage Loan Schedule
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with respect to the Mortgage Loans being sold shall also be delivered to the
Custodian on a computer readable magnetic disk. If requested by the Purchaser,
and upon receipt of the original or a facsimile copy of the Trust Receipt and a
Final Certification (if a Final Certification has previously been issued) which
has been clearly marked "CANCELLED" and signed by an authorized officer of the
Purchaser (and in the case of a facsimile, the original cancelled Trust Receipt
and a Final Certification (if a Final Certification has previously been issued
shall be sent to the Custodian via overnight delivery), the Custodian shall
deliver to the Purchaser a certification in the form of the Trust Receipt and a
certification in the form of a Final Certification (if a Final Certification has
previously been issued) with respect to the remaining Mortgage Loans governed
hereunder.
The Custodian shall hold the related Mortgage Loan Documents of the
Sold Mortgage Loans, for the benefit of the Transferee until the Purchaser or
the Transferee gives the Custodian written instructions for the delivery (at the
cost and expense of such Transferee) of the related Mortgage Loan Documents to
the Transferee or a designee of the Transferee. If requested by the Purchaser,
with respect to the Sold Mortgage Loans, the Custodian shall deliver to the
Transferee an original copy of a Trust Receipt and if a Final Certification has
been issued with respect to the Sold Mortgage Loans, a Final Certification for
the benefit of
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the Transferee for the period of time the Custodian holds the Sold Mortgage
Loans for the Transferee. Simultaneously with the delivery of the related
Mortgage Loan Documents to the Transferee or a designee of the Transferee, the
Trust Receipt and Final Certification, if any, issued to the Transferee shall be
deemed canceled and the Sold Mortgage Loans and related Mortgage Loan Documents
will no longer be subject to this Agreement. Such cancelled Trust Receipt and
Final Certification, if any, issued to such Transferee shall be returned to the
Custodian for proper disposition.
Section 13. Examination of Custodial Files.
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Upon reasonable prior notice to the Custodian but not less than two
(2) Business Days' notice, the Purchaser and its agents, accountants, attorneys
and auditors will be permitted during normal business hours to examine the
Custodial Files, documents, records and other papers in the possession of or
under the control of the Custodian relating to any or all of the Mortgage Loans.
Section 14. Insurance of Custodian.
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At its own expense, the Custodian shall maintain at all times during
the existence of this Agreement and keep in full force and effect fidelity
insurance, theft of documents insurance, forgery insurance and errors and
omissions insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance typically
maintained by banks which act as Custodian. The minimum coverage under any such
bond and insurance policies shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Mortgage-Backed Securities Selling and Servicing
Guide or by FHLMC in the FHLMC Seller's & Servicer's Guide, and as required by
FHA Regulations or VA Regulations. A certificate of the respective insurer as
to each such policy, shall be furnished to the Purchaser, upon request,
containing the statement of the insurer evidencing that such insurance is in
full force and effect.
Section 15. Counterparts.
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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 counterparts shall
be deemed to be an original, and such counterparts shall constitute and be one
and the same instrument.
Section 16. Periodic Statements.
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Upon the request of the Purchaser, the Custodian shall provide to the
Purchaser a list of all the Mortgage Loans for which the Custodian holds a
Custodial File pursuant to this Agreement. Such list may be in the form of a
copy of the Mortgage Loan Schedule with manual deletions to specifically denote
any Mortgage Loans paid off or repurchased since the date of this Agreement.
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SECTION 17. GOVERNING LAW.
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THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 18. Copies of Mortgage Documents.
----------------------------
Upon the request of the Purchaser and at the cost and expense of the
Purchaser, the Custodian shall provide the Purchaser with copies of the Mortgage
Notes, Mortgages, Assignments of Mortgage and other documents relating to one or
more of the Mortgage Loans.
Section 19. No Adverse Interest of Custodian.
--------------------------------
By execution of this Agreement, the Custodian represents and warrants
that it currently holds, and during the existence of this Agreement shall hold,
no adverse interest, by way of security or otherwise, in any Mortgage Loan, and
hereby waives and releases any such interest which it may have in any Mortgage
Loan as of the date hereof.
Section 20. Termination of Custodian.
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The Custodian may terminate its obligations under this Agreement upon
at least 45 days' notice to the Company, the Servicer and the Purchaser. In the
event of such termination, the Purchaser shall appoint a successor Custodian
which successor Custodian shall deliver all previously issued Trust Receipts and
Final Certifications to the predecessor Custodian which were not previously
delivered to the predecessor Custodian. The payment of such successor
Custodian's fees and expenses shall be solely the responsibility of the Company.
Upon such appointment, the Custodian shall promptly transfer to the successor
Custodian, as directed, all Custodial Files being administered under this
Agreement, and shall assign the Mortgages and endorse the Mortgage Notes to the
successor Custodian, if the endorsements on the Mortgage Notes and the
Assignments of Mortgage have been completed in the name of the Custodian, or as
otherwise directed by the Purchaser.
Section 21. Term of Agreement.
-----------------
Unless terminated pursuant to Section 11 or Section 20 hereof, this
Agreement shall terminate upon the final payment or other liquidation (or
advance with respect thereto) of the last Mortgage Loan or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan, and the final remittance of all funds due the Purchaser under the
Servicing Agreement. In such event all documents remaining in the Custodial
Files shall be released in accordance with the written instructions of the
Purchaser upon delivery by the Purchaser of the related Trust Receipts and Final
Certifications which were not previously delivered to the Custodian.
-10-
Section 22. Notices.
-------
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the recipient party at the address shown on the first page hereof, or at such
other addresses as may hereafter be furnished to the other parties by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt). The Custodian's corporate trust office is
located at the following address: ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and the Custodian shall notify the Purchaser, the Company and the
Servicer if such address should change.
Section 23. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto.
Section 24. Indemnification of Custodian.
----------------------------
Neither the Custodian nor any of its directors, officers, agents or
employees, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith in good faith and believed by it or
them to be within the purview of this Custodial Agreement, except for its or
their own negligence, lack of good faith or willful misconduct. In no event
shall the Custodian or its directors, officers, agents and employees be held
liable for any special, indirect or consequential damages resulting from any
action taken or omitted to be taken by it or them hereunder or in connection
herewith even if advised of the possibility of such damages.
The Company agrees to indemnify and hold the Custodian and its
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it in any way relating to or arising out of this Custodial Agreement or
any action taken or not taken by it or them hereunder unless such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements were imposed on, incurred by or asserted against the
Custodian (a) because of the breach by the Custodian of its obligations
hereunder, which breach was caused by negligence, lack of good faith or willful
misconduct on the part of the Custodian or any of its directors, officers,
agents or employees or (b) pursuant to the Custodian's indemnification
obligation under Section 25 hereof. The foregoing indemnification shall survive
any termination or assignment of this Custodial Agreement and the resignation or
removal of the Custodian.
-11-
Section 25. Indemnification of the Purchaser.
--------------------------------
In the event that the Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to a Mortgage Loan that was
in its possession pursuant to Section 2 within two (2) Business Days after
required or requested by the Purchaser (a "Custodial Delivery Failure"), and
provided, that (i) Custodian previously delivered to the Purchaser a Trust
Receipt with respect to such document; (ii) such document is not outstanding
pursuant to a request for release of documents and receipt in the form annexed
hereto as Exhibit 3; and (iii) such document was assigned or sold to the
---------
Purchaser, then the Custodian shall (a) with respect to any missing Mortgage
Note, promptly deliver to such Purchaser upon request, a Lost Note Affidavit in
the form of Exhibit 10 annexed hereto and (b) with respect to any missing
----------
document related to such Mortgage Loan including but not limited to, a missing
Mortgage Note, (1) indemnify the Purchaser in accordance with the succeeding
paragraph of this Section 25 and, (2) at the Purchaser's option, at any time the
long term obligations of the Custodian are rated below the second highest rating
category of ▇▇▇▇▇'▇ Investors Service or Standard and Poor's Ratings Group,
obtain and maintain an insurance bond in the name of the Purchaser, and its
successors in interest and assigns, insuring against any losses associated with
the loss of such document, in an amount equal to the then outstanding principal
balance of the Mortgage Loan or such lesser amount requested by the Purchaser in
the Purchaser's sole discretion.
The Custodian agrees to indemnify and hold the Purchaser and its
designee harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable attorney's fees, that may be
imposed on, incurred by, or asserted against it or them in any way relating to
or arising out of such Custodial Delivery Failure. The foregoing
indemnification shall survive any termination or assignment of the Custodial
Agreement and the resignation or removal of the Custodian.
Section 26. Reliance of Custodian.
---------------------
In the absence of bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any request, instructions,
certificate, opinion or other document furnished to the Custodian, reasonably
believed by the Custodian to be genuine and to have been signed or presented by
the proper party or parties and conforming to the requirements of this Custodial
Agreement; but in the case of any loan document or other request, instruction,
document or certificate which by any provision hereof is specifically required
to be furnished to the Custodian, the Custodian shall be under a duty to examine
the same in accordance with the requirements of this Custodial Agreement.
Section 27. Transmission of Custodial Files.
-------------------------------
Written instructions as to the method of shipment and shipper(s) the
Custodian is directed to utilize in connection with transmission of mortgage
files and loan documents in the performance of the Custodian's duties hereunder
shall be delivered by the Servicer to the
-12-
Custodian prior to any shipment of any mortgage files and loan document
hereunder. The Servicer will arrange for the provision of such services at its
sole cost and expense (or, at the Custodian's option, reimburse the Custodian
for all costs and expenses incurred by the Custodian consistent with such
instructions) and will maintain such insurance against loss or damage to
mortgage files and loan documents as the Servicer deems appropriate. Without
limiting the generality of the provisions of Section 24 above, it is expressly
agreed that in no event shall the Custodian have any liability for any losses or
damages to any person, including without limitation, the Servicer, arising out
of actions of the Custodian consistent with instructions of the Servicer.
Section 28. Authorized Representatives.
--------------------------
Each individual designated as an authorized representative of the
Company, the Custodian, the Purchaser and the Servicer, respectively (an
"Authorized Representative"), is authorized to give and receive notices,
--------------------------
requests and instructions and to deliver certificates and documents in
connection with this Custodial Agreement on behalf of the Company, the
Custodian, the Purchaser or the Servicer, as the case may be, and the specimen
signature for each such Authorized Representative of the Company, each such
Authorized Representative of the Custodian, each such Authorized Representative
of the Purchaser, and each such Authorized Representative of the Servicer
initially, authorized hereunder, is set forth on Exhibits 4, 5, 6 and 11 hereof,
---------- -- -
respectively. From time to time, the Company, the Custodian, the Purchaser and
the Servicer may, by delivering to the others a revised exhibit, change the
information previously given pursuant to this Section 28, but each of the
parties hereto shall be entitled to rely conclusively on the then current
exhibit until receipt of a superseding exhibit.
Section 29. Reproduction of Documents.
-------------------------
This Custodial Agreement and all documents relating thereto except
with respect to the Custodial File, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, and (b) certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process. The parties agree that 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.
Section 30. Amendment.
----------
This Custodial Agreement may be amended from time to time by written
agreement signed by the Company, the Purchaser, the Servicer and the Custodian.
-13-
Section 31. Reserve Fund.
------------
On each Closing Date, the Company shall deposit with the Custodian in
immediately available funds to an account maintained with the Custodian for the
benefit of and in the name of the Purchaser (the "Reserve Fund"), an amount
------------
equal to 50 basis points (0.50%) multiplied by the aggregate outstanding
principal balance of the Mortgage Loans being purchased by the Company on the
related Closing Date (such amount, the "Reserve Amount"). The Purchaser shall
--------------
own the Reserve Amount in its entirety and shall be entitled, in its sole
discretion, to withdraw all or a portion of the Reserve Amount from the Reserve
Fund at any time for any reason including, without limitation, in order to
reimburse itself for any actual losses incurred by it with respect to the
Mortgage Loans (other than for a breach of a representation and warranty set
forth in the Seller's Warranties Agreement, for which the Purchaser's sole
recourse shall be a repurchase of the related Mortgage Loan and indemnification,
as provided in Section 3.03 of the Seller's Warranties Agreement or losses
resulting from the Purchaser's breach of the Purchase Agreement or any other
agreement between the Purchaser and the Company), or as credit enhancement in
connection with any securitization or resale of all or a portion of the Mortgage
Loans (such amount allocated to credit enhancement being limited to 50 basis
points (0.50%) multiplied by the aggregate outstanding principal balance of the
Mortgage Loans being securitized or resold), notwithstanding the termination of
the Seller's Warranties Agreement in connection with such securitization. The
Purchaser shall have the exclusive right to withdraw funds from the Reserve Fund
and the Reserve Fund shall be a "no access" account to the Company.
notwithstanding anything to the contrary set forth herein, in the event the
company is required to repurchase a mortgage loan from the purchaser pursuant to
section 6(c) of the purchase agreement, at the company's option either that
portion of the reserve amount which relates to the repurchased mortgage loan
shall be remitted by the purchaser to the company within three (3) business days
following the repurchase of the mortgage loan by the company or such amount
shall be offset against the repurchase price and the purchaser shall have the
right to withdraw the same from the reserve fund. Upon the termination of the
Seller's Warranties Agreement, all funds remaining in the Reserve Fund shall be
the sole and exclusive property of the Purchaser, provided, however, that upon
the payment in full or liquidation of all of the Mortgage Loans, all funds
remaining in the Reserve Fund shall be remitted by the Purchaser to the Company
within three (3) Business Days following receipt by the Purchaser of evidence
from the Company that a payment in full or liquidation has occurred with respect
to all of the Mortgage Loans. The Custodian shall invest any funds deposited in
the Reserve Fund in investments as directed by the Purchaser to the Custodian in
writing. All interest earned on funds deposited in the Reserve Fund shall
remain in the Reserve Fund and shall be part of the Reserve Amount. The
Purchaser and the Company hereby notify the Custodian of the Purchaser's
security interest in the Reserve Fund and in account #21070 maintained with the
Custodian.
-14-
IN WITNESS WHEREOF, the Company, the Purchaser, the Custodian and the Servicer
have caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
CS FIRST BOSTON MORTGAGE CAPITAL CORP.
Purchaser
By: _______________________________
Name: _______________________________
Title: _______________________________
T.A.R. PREFERRED MORTGAGE CORPORATION
Company
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Custodian
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
ADVANTA MORTGAGE CORP. USA
Servicer
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
-15-
EXHIBIT 1
---------
FORM OF TRUST RECEIPT
__________________, 1996
[To be addressed to the Purchaser]
Original Principal Balance:
Aggregate Outstanding Principal Balance of the Mortgage Loans:
Loan Count:
Re: The Custodial Agreement, dated as of August 1, 1996, among CS First
Boston Mortgage Capital Corp. as the Purchaser, T.A.R. Preferred
Mortgage Corporation, as the Company and Advanta Mortgage Corp. USA,
as the Servicer and Bankers Trust Company of California, N.A. as the
Custodian.
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that it
has received with respect to each Mortgage Loan identified on the Mortgage Loan
Schedule, a Mortgage Note and an Assignment of Mortgage as described in Section
2 of the above-referenced Custodial Agreement.
The Custodian makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, enforceability, sufficiency,
due authorization, recordability or genuineness of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan, or (iii) the accuracy of
the aggregate outstanding principal balance of the Mortgage Loans which has been
provided by CS First Boston Mortgage Capital Corp.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
By: __________________________________
Name: __________________________________
Title: __________________________________
EXHIBIT 2
---------
FORM OF FINAL CERTIFICATION
______________________
[No later than 30 days after the Closing Date]
[To be addressed to the Purchaser of record]
Re: The Custodial Agreement, dated as of August 1, 1996, among CS First
Boston Mortgage Capital Corp. as the Purchaser, T.A.R. Preferred
Mortgage Corporation, as the Company, Advanta Mortgage Corp. USA, as
the Servicer and Bankers Trust Company of California, N.A., as the
Custodian.
Ladies and Gentlemen:
In accordance with the provisions of Section 5 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto)
it has reviewed the Custodial Files and has determined that (i) all documents
required to be delivered to it pursuant to paragraphs (a), (c), (e), (f) and (g)
of Section 2 of the Custodial Agreement, and to the extent provided in the
Custodial Files (b), (d), and (h) of Section 2 of the Custodial Agreement are in
its possession; (ii) such documents have been reviewed by it and appear regular
on their face and related to such Mortgage Loan; (iii) based on its examination
and only as to the foregoing documents, the information set forth in items (1),
(2), (3), (10), (11), and (13) of the Mortgage Loan Schedule respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2 of the Custodial Agreement.
The Custodian makes no representations as to and shall not be
responsible to verify the: (i) the validity, legality, enforceability,
sufficiency, due authorization, recordability or genuineness of any of the
documents contained in any Custodial File or any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or (iii)
whether a binder or title insurance policy is required to be delivered pursuant
to Section 2(g).
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 3
---------
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Address]
Re: The Custodial Agreement, dated as of August 1, 1996, among CS First
Boston Mortgage Capital Corp. as the Purchaser, T.A.R. Preferred
Mortgage Corporation, as the Company, Advanta Mortgage Corp. USA, as
the Servicer and Bankers Trust Company of California, N.A. as the
Custodian.
In connection with the administration of the Mortgage Loans held by
you as the Custodian on behalf of the Purchaser, we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated. The Custodial
File/documents should be sent to:
[Name]
[Company]
[Address]
[Phone]
Mortgagor's Name, Address & Zip Code:
------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
__1. Mortgage Loan Paid in Full. (The Servicer hereby certifies that all
amounts received in connection therewith have been credited to the
Purchaser.)
__2. Mortgage Loan Repurchase Pursuant to the Servicing Agreement. (The
Servicer hereby certifies that the repurchase price has been credited
to the Purchaser.)
__3. Mortgage Loan Liquidated By _____________ (The Servicer hereby
certifies that all proceeds of foreclosure, insurance, condemnation or
other liquidation have been finally received and credited to the
Purchaser.)
__4. Mortgage Loan in Foreclosure.
__5. Other (explain) ____________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial
File was previously released to us, please release to us our 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 4 or 5 above is checked, upon our 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 this form.
ADVANTA MORTGAGE CORP. USA
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Date:
------------------------------------
Acknowledgment of Documents returned to the Custodian:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Date:
------------------------------------
EXHIBIT 4
---------
AUTHORIZED REPRESENTATIVES OF COMPANY
NAME SPECIMEN SIGNATURE
---- ------------------
___________________ ___________________________
___________________ ___________________________
___________________ ___________________________
___________________ ___________________________
___________________ ___________________________
EXHIBIT 5
---------
AUTHORIZED REPRESENTATIVES OF PURCHASER
NAME SPECIMEN SIGNATURE
---- ------------------
_______________________ _____________________________
_______________________ _____________________________
_______________________ _____________________________
_______________________ _____________________________
_______________________ _____________________________
EXHIBIT 6
---------
AUTHORIZED REPRESENTATIVES OF CUSTODIAN
NAME SPECIMEN SIGNATURE
---- ------------------
________________________ ________________________________
________________________ ________________________________
________________________ ________________________________
________________________ ________________________________
________________________ ________________________________
EXHIBIT 7
---------
FORM OF NOTICE OF SALE
----------------------
Date: [to be sent at least one day prior to sale]
To: Bankers Trust Company of California, N.A.
From: CS First Boston Mortgage Capital Corp.
(or its Successor or Assignee)
Re: The Custodial Agreement, dated as of August 1, 1996, among CS First
Boston Mortgage Capital Corp. as the Purchaser, T.A.R. Preferred Mortgage
Corporation as the Company, Advanta Mortgage Corp. USA, as the Servicer and
Bankers Trust Company of California, N.A as the Custodian.
Ladies and Gentlemen:
You are hereby notified that as of [date of sale to be inserted] (the
"Transfer Date"), the undersigned has transferred and assigned to [name of
subsequent purchaser to be inserted], having an address at
___________________________________, the right (including the power to convey
title thereto), title and interest in and to the Mortgage Loans identified in
the Mortgage Loan Schedule attached hereto as Schedule A and you are hereby
instructed to [if the Custodial Agreement is to be assigned insert: hold such
Mortgage Loans pursuant to the terms of the Custodial Agreement, dated as of
August 1, 1996, among CS First Boston Mortgage Capital Corp. as the Purchaser,
T.A.R. Preferred Mortgage Corporation, as the Company, Advanta Mortgage Corp.
USA, as the Servicer and Bankers Trust Company of California, N.A as the
Custodian., for the sole and exclusive benefit of [name of subsequent purchaser
to be inserted] subject to the terms hereof, by which [name of subsequent
purchaser to be inserted] agrees to be bound] [if the related Custodial Files
are to be released insert: release the Custodial Files with respect to such
Mortgage Loans to [the subsequent purchaser] upon the direction of [the
Purchaser] on the Transfer Date].
This notification may be revoked by [Purchaser] by written notice to
the Custodian at any time prior to the transfer of ownership of the referenced
Mortgage Loans to [name of subsequent purchaser].
CS FIRST BOSTON MORTGAGE CAPITAL CORP.
(or its Successor or Assignee)
By: ________________________________
Name: [to be signed by an authorized
representative]
Title: _______________________________
Acknowledged & Agreed:
[Subsequent Purchaser]
By: _______________________
Name:
Title:
EXHIBIT 8
---------
FORM OF OPINION OF COUNSEL OF THE CUSTODIAN
(Date)
CS First Boston Mortgage Capital Corp.
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
[We] [I] have acted as counsel to Bankers Trust Company of California,
N.A. (the "Custodian"), in connection with the execution and delivery of the
---------
Custodial Agreement, dated as of August 1, 1996 (the "Agreement"), among T.A.R.
---------
Preferred Mortgage Corporation (the "Seller"), Advanta Mortgage Corp. USA, you,
------
and the Custodian with respect to the Mortgage Loans delivered by the Seller as
to which the Custodian named herein is to act as custodian.
[We] [I] have reviewed the Agreement and such other matters as we have
deemed appropriate in order to deliver the opinions contained herein.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Custodian is a [federally] [state] chartered commercial bank
duly organized, validly existing and in good standing under the laws of the
[United States] [the State of ______] with full right, power and authority to
enter into, execute and deliver the Agreement.
2. The Agreement has been duly authorized, executed and delivered by
the Custodian and constitutes the legal, valid and binding agreement of and
enforceable against the Custodian in accordance with its terms, subject to
bankruptcy laws and other similar laws of general application affecting rights
of creditors and subject to the application of the rules of equity, including
those respecting the availability of specific performance, none of which will
materially interfere with the realization of the benefits provided under the
Agreement.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchasers to which
you initially and directly resell the Mortgage Loans may rely on this opinion as
if it were addressed to them as of its date.
Very truly yours,
EXHIBIT 9
---------
MORTGAGE LOAN SCHEDULE
EXHIBIT 10
----------
FORM OF LOST NOTE AFFIDAVIT
STATE OF CALIFORNIA
) SS:
COUNTY OF ORANGE
__________________________ being first duly sworn, deposes and says:
1. That he is an __________________ of Bankers Trust Company of
California, N.A. ("Bankers Trust"), which was the custodian of the mortgage loan
documents for mortgage loan number _______________ as provided by
2. That the original of the related note (the "Note") appears to have
been lost, mislaid or misfiled by Bankers Trust;
3. That the records of Bankers Trust do not show that such Note was
ever released, paid off, satisfied, assigned, transferred, pledged or
hypothecated and that such note has been either lost, mislaid, or misfiled by
Bankers Trust;
4. That Bankers Trust is aware that ____________________, to which
the above mentioned mortgage loan is to be assigned, relies upon the statements
made herein as to such Note having been lost, mislaid or misfiled by Bankers
Trust and never having been released, paid off, satisfied, assigned,
transferred, pledged or hypothecated;
5. In the event that Bankers Trust should ever locate said mortgage
Note, Bankers Trust agrees to provide said Note to ___________________ and
_______________ agrees to return this Lost Note to Bankers Trust;
6. Attached hereto is a true and correct copy of (i) the Note,
endorsed in blank by the Mortgagee, and (ii) the Mortgage or Deed of Trust
[strike one] which secures the Note, which Mortgage or Deed of Trust is recorded
at ___________________
7. Bankers Trust shall (a) shall indemnify and hold harmless
[INVESTOR], its successors, and assigns, against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including reasonable
attorney's fees, that may be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of unavailability of any Notes.
IN WITNESS WHEREOF, the undersigned has executed this instrument on
behalf of Bankers Trust Company of California, N.A., this _____ day of
____________, 19__.
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A.
By: _____________________
Name: _____________________
STATE OF CALIFORNIA
County of Orange
On this _________ day of _______________________, 199_,
_____________________ personally came before me And is known to me to be the
individual described in, and who executed, the foregoing instrument, and he/she
acknowledged to me that he/she executed the same.
_____________________________________ Notary Public, State of California
(No.__________)
Qualified in ___________ County
Term expires ____________ 19 __
Notary Seal
EXHIBIT 11
----------
AUTHORIZED REPRESENTATIVES OF THE SERVICER
NAME SPECIMEN SIGNATURE
---- ------------------
___________________ ________________________________
___________________ ________________________________
___________________ ________________________________
___________________ ________________________________
___________________ ________________________________
EXHIBIT 12
----------
CONFIRMATION OF RECEIPT OF RESERVE FUNDS
To:___________________
Re: The Custodial Agreement, dated as of August 1, 1996, among CS First
Boston Mortgage Capital Corp. as the Purchaser, T.A.R. Preferred
Mortgage Corporation, as the Company, Advanta Mortgage Corp. USA, as
the Servicer and Bankers Trust Company of California, N.A. as the
Custodian.
In connection with the above-referenced Custodial Agreement, Custodian
hereby confirms that with respect to the Closing Date of _________, the
Custodian has received an amount equal to $______________, and has deposited
same in the Reserve Fund.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________