Exhibit 10.6(c)
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TRI-PARTY CUSTODIAL AGREEMENT FOR CONTRACTS
by and among
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
Buyer
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC,
Seller and Servicer
and
FIRST BANK NATIONAL ASSOCIATION,
Custodian
Dated as of October 10,1996
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS............................. 1
Section 1.1. General..................................................... 1
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Section 1.2. Certain Defined Terms....................................... 1
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Section 1.3. Incorporation of Certain Definitions........................ 5
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Section 1.4. Reference to Time........................................... 5
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ARTICLE II
CONTRACT SCHEDULE.......................... 6
Section 2.1. Contract Schedule: Computer Tape............................ 6
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Section 2.2. Documents Maintained by Seller.............................. 6
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ARTICLE III
CUSTODIAL ARRANGEMENT........................ 7
Section 3.1. Transfer of Contracts: Delivery of Documents................ 7
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Section 3.2. Transactions Not Subject to Table Funding................... 10
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Section 3.3. Transactions Subject to Table Funding....................... 11
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Section 3.4. Trust Receipt and Certification............................. 12
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Section 3.5. Release of Custodian's Contract Files....................... 13
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Section 3.6. Repurchase.................................................. 14
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Section 3.7. Custodial Register.......................................... 14
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Section 3.8. Power of Attorney........................................... 14
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Section 3.9. No Service Charge for Sale or Transfer of Contracts......... 14
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Section 3.10. Buyer May Reject Contracts.................................. 14
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ARTICLE IV
REPURCHASE DATE PAYMENTS; CONTRACT ACCOUNT.............. 15
Section 4.1. Repurchase Date Payments.................................... 15
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Section 4.2. Contract Account............................................ 15
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Section 4.3. Simultaneous Transfers...................................... 16
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Section 4.4. Transfer of Contracts....................................... 16
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ARTICLE V
SERVICING.............................. 17
Section 5.1. Duties of Servicer; Standard of Care........................ 17
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Section 5.2. Collection of Payments...................................... 17
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Section 5.3. Additional Servicing Duties and Obligations with respect
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to Contracts................................................ 18
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Section 5.4. [Reserved].................................................. 20
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Section 5.5. Notice of Default........................................... 20
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Section 5.6. Servicer Expenses........................................... 20
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Section 5.7. Collections................................................. 20
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Section 5.8. Representations of Servicer................................. 20
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Section 5.9. Merger or Consolidation of, or Assumption of the
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Obligations of Servicer..................................... 21
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Section 5.10. Resignation .......................................... 22
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Section 5.11. Fidelity Bond, Errors and Omissions Insurance ........ 22
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Section 5.12. [Intentionally Omitted] .............................. 22
Section 5.13. Monthly Servicing Report ............................. 22
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Section 5.14. Servicer Termination Event ........................... 24
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Section 5.15. Transfer and Successor Servicer ...................... 24
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Section 5.16. Custodian to Act: Appointment of Sucessor ............ 25
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ARTICLE VI
CUSTODIAN .............................. 27
Section 6.1. Representations, Warranties and Covenants of Custodian 27
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Section 6.2. Custodian of Documents ................................ 28
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Section 6.3. Charges and Expenses .................................. 28
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Section 6.4. No Adverse Interests .................................. 29
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Section 6.5. Inspections ........................................... 29
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Section 6.6. Insurance ............................................. 29
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Section 6.7. Limitation of Liability ............................... 29
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Section 6.8. Indemnification ....................................... 29
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Section 6.9. Removal of Custodian .................................. 29
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Section 6.10. Termination of Custodian .............................. 30
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Section 6.11. Reliance of Custodian ................................. 30
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Section 6.12. Transmission of Custodain's Contract Files ............ 30
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Section 6.13. Authorized Representatives ............................ 31
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ARTICLE VIII
MISCELLANEOUS PROVISIONS....................... 32
Section 7.1. Amendment ............................................. 32
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Section 7.2. Governing Law and Jurisdiction; Waiver of Jury Trial .. 32
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Section 7.3. Notices ............................................... 32
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Section 7.4. Severability of Provisions ............................ 33
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Section 7.5. No Partnership ........................................ 33
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Section 7.6. Counterparts .......................................... 33
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Section 7.7. Assignment ............................................ 33
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Section 7.8. Headings .............................................. 33
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EXHIBIT A Trust Receipt and Certification ............................. ▇-▇
▇▇▇▇▇▇▇ ▇-▇ Initial Trust Receipt and Certification ..................... A-1-1
EXHIBIT B Request for Release of Documents ............................ B-1
EXHIBIT C Form of Transaction Notice .................................. C-1
EXHIBIT D Form of Contract Schedule ................................... D-1
EXHIBIT E Authorized Officers of Buyer ................................ E-1
EXHIBIT F Authorized Officers of Seller ............................... F-1
EXHIBIT G Authorized Officers of Servicer ............................. G-1
EXHIBIT H Authorized Officers of Custodian ............................ H-1
EXHIBIT I Escrow Agreement ............................................ I-1
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TRI-PARTY CUSTODIAL AGREEMENT FOR CONTRACTS
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This Tri-Party Custodial Agreement for Contracts ("Agreement"), dated
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as of October 10, 1996, is by and among CS First Boston Mortgage Capital Corp.,
a New York corporation ("Buyer"), Franchise Mortgage Acceptance Company LLC, a
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California limited liability company ("Seller"), and First Bank National
Association, a national banking association ("Custodian").
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Recitals
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Pursuant to the Repurchase Agreement, Seller may from time to time
enter into Transactions, evidenced by confirmations, to transfer and sell
Contracts to Buyer against transfer of funds from Buyer to Seller.
Seller and Buyer desire to provide for the servicing, custody and
management of the Contracts which may become subject to a Transaction.
In connection with the foregoing, Seller and Buyer desire to engage
Custodian to act as custodian of the Contracts for the benefit of Seller, Buyer
and subsequent purchasers of Contracts from Buyer, as their interests may
appear.
Custodian is willing and able to perform the duties and obligations of
a custodian and bailee as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, Buyer, Seller and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. General. For the purpose of this Agreement, except as
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otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article include the plural as well as the singular, the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision, and Section references refer to Sections of this Agreement.
Section 1.2. Certain Defined Terms. Whenever used in this
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Agreement, unless the context otherwise requires, the following words shall have
the meanings set forth below:
"Accepted Servicing Standards": As defined in Section 5.1 hereof.
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"Agreement": This Tri-Party Custodial Agreement for Contracts,
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including all exhibits hereto, and all amendments hereof and supplements hereto.
"Assignment": With respect to a Contract, collectively the original
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instrument of assignment of such Contract and all other documents securing
such Contract made by the
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Person originating such Contract to the Seller, which is in a form sufficient
under the laws of the jurisdiction in which the related Collateral is located to
permit the assignee to exercise all rights granted by the Obligor under such
Contract and such other documents and all rights available under applicable law
to the obligee under such Contract and which, in each case, may, to the extent
permitted by the laws of the state in which the related Collateral is located,
be a blanket instrument of assignment covering other Contracts as well.
"Assignment of Leases": As defined in the Supplemental Terms.
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"Authorized Representative": As defined in Section 6.13 hereof.
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"Available Funds": With respect to any Repurchase Date, all
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collections and other amounts received in respect of the Contracts and deposited
to the Contract Account during the related Collection Period.
"Buyer": CS First Boston Mortgage Capital Corp., or any successor
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thereto.
"Buyer's Account": The account designated in writing by Buyer to
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Custodian, as Buyer may so designate from time to time.
"Closing Documents": As defined in the Escrow Agreement.
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"Collateral": As defined in the Supplemental Terms.
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"Collateral Lease": As defined in the Supplemental Terms.
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"Collateral Period": With respect to any Repurchase Date, the calendar
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month preceding the month in which such Repurchase Date occurs.
"Computer Tape": A computer tape generated by the Seller and delivered
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to Buyer pursuant Section 2.1 and Section 3.2 or Section 3.3 hereof, as
applicable, which provides information relating to the Contracts in a format as
may be requested by Buyer or Custodian, including, without limitation, the
information set forth in Exhibit D to this Agreement.
"Contract Account": An account established pursuant to Section 4.2
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hereof.
"Contract Rate": The annual rate at which interest accrues and as
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indicated on a Contract.
"Contract Schedule": The schedule of Contracts delivered by Seller to
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Custodian, substantially in the form attached hereto as Exhibit D, setting forth
categories of information contained in Exhibit D with respect to each Contract
possession of which is maintained by Custodian on behalf of the Buyer.
"Contracts": As defined in the Repurchase Agreement.
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"Custodian": First Bank National Association, acting in its custodial
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capacity under this Agreement, or any successor thereto.
"Custodian's Contract File": As defined in Section 3.1 hereof.
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"Defaulted Contract": With respect to any date of determination, any
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Contract with respect to which all or any part of the scheduled monthly payment
due in the second calendar month immediately preceding the calendar month in
which such date of determination occurs has not been received.
"Delivery Date": The date on which Contracts are delivered to
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Custodian by Seller which shall be (x) at least one (1) Business Day prior to
the related Purchase Date in the case of Transactions not subject to Table
Funding or (y) as set forth in Section 3.3 hereof in the case of a Transaction
subject to Table Funding.
"Disbursement Letter": As defined in each Escrow Agreement.
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"Equipment": As defined in the Supplemental Terms.
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"Escrow Agreement": The agreement entered into by among the Buyer,
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Seller, Escrow Agent and Custodian with respect to a Table Funding, a form of
which is attached hereto as Exhibit I.
"Event of Termination": As defined in Section 11 of the Supplemental
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Terms.
"Flood Insurance Policy": An insurance policy insuring against flood
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damage to a Mortgaged Property, required by loan originators for Mortgaged
Properties located in "flood hazard areas identified by the Secretary of the
Housing and Urban Development or the Director of the Federal Emergency
Management Agency.
"Franchise Agreement": As defined in the Supplemental Terms.
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"Leasehold Interest": As defined in the Supplemental Terms.
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"Loan Documents": As defined in the Supplemental Terms.
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"Loan-to-Value Ratio": shall mean as of any date, the fraction,
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expressed as a percentage, the numerator of which is the Outstanding Principal
Amount of the related Contract at the date of determination and the denominator
of which is the Appraised Value of the related Collateral.
"Margin Call": As defined in Section 3.2 hereof.
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"Master Repurchase Agreement": The Master Repurchase Agreement (1987
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Version) dated as of October 10, 1996 between Franchise Mortgage Acceptance
Company LLC and CS First Boston Mortgage Capital Corp.
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"Monthly Servicing Fee": As to any Repurchase Date, one-twelfth of the
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product of .40% and the aggregate Outstanding Principal Amount of the Contracts
as of the preceding Repurchase Date.
"Monthly Servicing Report": The report required to be delivered by
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Seller pursuant to Section 5.13 hereof, in such format as is acceptable to Buyer
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and Custodian, together with a computer tape and a diskette (or any other
electronic transmission acceptable to Buyer and the Custodian) in a format
acceptable to the Buyer and the Custodian containing such information with
respect to the Contracts and the preceding Collection Period as CSFB or the
Custodian may reasonably request.
"Mortgage": As defined in the Supplemental Terms.
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"Mortgaged Property": As defined in the Supplemental Terms.
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"Note": As defined in the Supplemental Terms.
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"Outstanding Principal Amount": The outstanding principal amount
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thereof, in each case as reflected on the most recent Computer Tape received by
Custodian; provided, however, that any Defaulted Contract and any Rejected
Contract shall be assigned an Outstanding Principal Amount of zero.
"Pay-Off Letter": As defined in the Escrow Agreement.
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"Person": Any individual, corporation, partnership, joint venture,
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association, joint-stock company, trust (including any beneficiary thereof),
limited liability company, unincorporated organization or government or any
agency or political subdivision thereof.
"Price Differential": As defined in Paragraph 2(i) of the Master
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Repurchase Agreement.
"Purchase Date": As defined in Paragraph 2(l) of the Master Repurchase
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Agreement.
"Purchase Price": With respect to any Transaction, the price to be
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paid or deemed to be paid by Buyer for the Contracts in accordance with the
Repurchase Agreement.
"Rejected Contract": Any Contract that Buyer has rejected pursuant to
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the Repurchase Agreement and in accordance with Section 3.10 hereof.
"Repurchase Agreement": The Master Repurchase Agreement and the
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Supplemental Terms, including all amendments, annexes and supplements thereto.
"Repurchase Agreement Default": An Event of Default (as defined in the
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Repurchase Agreement) under the Repurchase Agreement.
"Repurchase Date": As defined in Section 2(b) of the Supplemental
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Terms.
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"Repurchase Price": As defined in Section 2(p) of the Master
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Repurchase Agreement.
"S&P": Standard & Poor's Ratings Service, or any successor thereto.
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"Seller": Franchise Mortgage Acceptance Company LLC, or any successor
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thereto.
"Servicer": Franchise Mortgage Acceptance Company LLC, or any
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successor thereto.
"Servicer Termination Event": As defined in Section 5.14 hereof.
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"Supplemental Terms": Annex I, Additional Supplemental Terms To Master
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Repurchase Agreement dated as of October 10, 1996 between Seller and Buyer.
"Transaction": As defined in the Repurchase Agreement.
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"Transaction Notice": With respect to each Transaction, the notice
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delivered by Seller to Buyer and Custodian pursuant to Section 3.2(a) or Section
3.3(a) hereof, as applicable, which notice shall be in the form of Exhibit C
attached hereto.
"Wire Instruction Letter": With respect to a Table Funding, the letter
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to be delivered by Seller to Buyer pursuant to Section 3.3 hereof which
specifies the wiring instructions for wiring the Purchase Price to the Escrow
Agent.
Section 1.3. Incorporation of Certain Definitions. All capitalized
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terms used herein and not otherwise defined shall have the meanings assigned in
the Repurchase Agreement unless the context clearly indicates otherwise.
Section 1.4. Reference to Time. All references to time herein shall be
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deemed to refer to New York City time unless otherwise provided.
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ARTICLE II
CONTRACT SCHEDULE
Section 2.1. Contract Schedule: Computer Tape.
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(a) Custodian shall maintain, as an attachment to its executed copy
of the this Agreement, the most recent version of the Contract Schedule, as such
list may be amended from time to time. Custodian shall receive a printed copy of
the amended Contract Schedule with each revised copy of the Computer Tape. If a
Computer Tape received by Custodian is not accompanied by such amended Contract
Schedule, Custodian shall immediately produce such a printed list from the
related Computer Tape. The Contract Schedule in the custody of Custodian shall
be the definitive Contract Schedule for all purposes under this Agreement.
(b) On or before each (i) Delivery Date, (ii) each Repurchase Date
and (iii) the date of each Margin Call, and in no event less than once in any
seven day period, Seller will provide to Custodian and to Buyer a Computer Tape
setting forth a list of all the Contracts and the Outstanding Principal Amount
of each such Contract as of a date not earlier than the Business Day prior to
such Delivery Date or Repurchase Date. Each Computer Tape shall clearly indicate
Defaulted Contracts in a manner acceptable to Custodian and Buyer and, when
delivered, shall be accompanied by a printed copy of the amended Contract
Schedule.
Section 2.2 Documents Maintained by Seller. Except as delivered to
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Custodian hereunder, Seller shall retain possession of all documents and files
relating to the Contracts. All documents held by Seller shall be held by it as
agent of Custodian for the benefit of the Buyer.
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ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. Transfer of Contracts: Delivery of Documents. Prior to a
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Contract becoming subject to this Agreement, and thereby becoming eligible for
inclusion in a Transaction, Seller shall deliver, or cause to be delivered, to
Custodian on the related Delivery Date, the following documents:
(i) the Contract Schedule, as amended;
(ii) a copy of the credit application of the Obligor;
(iii) the original Note, 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
Contract to the Seller;
(iv) the original Mortgage (fee or leasehold, as applicable) naming
Seller as the "mortgagee" thereof, and bearing in the face
thereof the address of Seller, or, if the Mortgage does not
name Seller as the mortgagee, 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 assignments thereof, a duplicate or
conformed copy of the Mortgage or the instruments of
assignment, if any, together with a certificate of receipt from
the Seller or the settlement agent who handled the closing of
the Contract, 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;
(v) the original Security Agreement naming Seller as the "secured
party" thereof, and bearing on the face thereof the address of
Seller, or, if the Security Agreement does not name Seller as
the secured party, the Security Agreement, together with an
instrument of assignment assigning the Security Agreement,
individually or together with other Security Agreements, to
Seller and bearing on the face thereof the address of Seller;
and the copies of the UCC-1 financing statements related to
such Security Agreement bearing evidence that such financing
statements have been filed in the
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appropriate filing office(s) under the Uniform Commercial Code where
the Collateral is located and recorded in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is
located (or in lieu of such evidence, a certificate of receipt from
the settlement agent who handled the closing of the Contract,
certifying that such copy or copies represent true correct copy(ies)
of the original(s) and that such original(s) have been or are
currently submitted to be filed in the appropriate filing office(s),
under the Uniform Commercial Code where the Collateral is located and
recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located) or a
certification or receipt of the filing and recording authority
evidencing the same;
(vi) an original Assignment of Mortgage (fee or leasehold, as applicable),
in blank, which assignment appears to be in form and substance
acceptable for recording and, in the event that the Seller acquired
the Contract in a merger, the assignment must be by "[Seller],
successor by merger to [name of predecessor]", and in the event that
the Contract was acquired or originated by Seller while doing business
under another name, the assignment must be by "[Seller]", formerly
known as [previous name]";
(vii) an original Assignment of Security Agreement, in blank, and in the
event that the Seller acquired the Contract in a merger, the
assignment must be by "[Seller], successor by merger to [name of
predecessor]", and in the event that the Contract was acquired or
originated by Seller while doing business under another name, the
assignment must be by "[Seller]", formerly known as [previous name]";
(viii) the original of any intervening assignment of the Mortgage (fee or
leasehold, as applicable) or Security Agreement or related UCC-1
Financing Statement not included in clauses (vi) and (vii) above,
respectively, including any warehousing assignment, with evidence of
recording thereon, if applicable, (or, in lieu of the original of any
such intervening assignment together with a certificate of receipt
from the Seller or the settlement agent who handled the closing of the
Contract, certifying that such copy represents a true and correct copy
of the original and that such original has been or is currently
submitted to be filed or recorded in the appropriate filing office
under the Uniform Commercial Code and/or recording office of the
jurisdiction where the Collateral is located, as applicable,) or a
certification or receipt if the filing or recording authority
evidencing the same;
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(ix) the originals of any assumption, modification, extension
or guaranty agreement with evidence of recording thereon,
if and as applicable, (or, in lieu of the original of any
such agreement, a duplicate or conformed copy of such
agreement together with a certificate of receipt from the
Seller or the settlement agent who handled the closing of
the Contract, 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 filed or recorded in the appropriate
filing office under the Uniform Commercial Code and/or
recording office of the jurisdiction where the Collateral
is located), or a certification or receipt of the filing
or recording authority evidencing the same;
(x) the original of any subordination of lessor's lien and
subordination agreement and assignment with evidence of
recording thereon, if applicable (or, in lieu of the
original of any such agreements, a duplicate or conformed
copy of such agreement together with a certificate of
receipt from the Seller or the settlement agent who
handled the closing of the Contract, certifying that such
copy or copies represent true and correct copy(ies) of the
original(s) and that such original(s) have been recorded
in the recording office of the jurisdiction where the
Mortgaged Property is located), or a certification or
receipt of the recording authority evidencing the same.
(xi) with respect to each Contract other than Contracts with
respect to which the related Mortgage secures the
Obligor's leasehold interest in the related Mortgaged
Property, an original 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 Contract
that the lender's title insurance policy will be issued;
(xii) if the Note or other related Loan Documents or any other
document or instrument relating to the Contract has been
signed by a person on behalf of the Obligor, the original
power of attorney or other instrument that authorized and
empowered such person to sign bearing evidence that such
instrument has been filed or recorded, if so required, in
the appropriate filing office under the Uniform Commercial
Code and/or recording office of the jurisdiction where the
Collateral 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 Seller or
the settlement agent who handled the closing of the
Contract, certifying that such copy represents a true and
complete copy of
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the original and that such original has been or is currently
submitted to be filed or recorded in the appropriate filing
office under the Uniform Commercial Code and/or recording
office of the jurisdiction where the Collateral is located) or
a certification or receipt of the filing or recording authority
evidencing the same;
(xiii) evidence of filing with the appropriate office in the following
jurisdictions of the following UCC-1 financing statements
indicating the Contracts as collateral: (a) UCC-1 financing
statement executed by Seller as debtor, naming Buyer as secured
party and filed in the State of California and the State of
Connecticut; and (b) such other filings under the UCC as may be
required by Buyer;
(xiv) if applicable, a copy of a ground lease and memorandum of
ground lease with evidence that such memorandum has been
recorded in the appropriate jurisdiction where the related
Mortgaged Property is located;
(xv) a copy of any Franchise Agreement certified by Seller that such
copy is a true and correct copy thereof; and
(xvi) other such documents as the Buyer may require after notice to
the Seller and the Custodian which the Custodian has consented
to review.
All documents held by Custodian with respect to a Contract, including
those delivered to Custodian pursuant to Section 3.1, are referred to herein as
the "Custodian's Contract File."
Section 3.2. Transactions Not Subject to Table Funding.
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(a) Transaction Notice.
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(i) Seller shall deliver to Buyer and Custodian a Transaction
Notice, in the form attached hereto as Exhibit C, and a Computer Tape not
later than 12:00 p.m., New York City time, on the Business Day preceding
the proposed Purchase Date with respect to a Transaction; provided,
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however, that if the Delivery Date with respect to each of the Contracts
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identified in the Transaction Notice is a date preceding the date of such
Transaction Notice, such Transaction Notice may be delivered not later than
11:00 a.m. on the proposed Purchase Date. Seller shall, either prior to the
delivery of or with the Transaction Notice, deliver to the Custodian the
items listed in Section 3.1 hereof for such Contracts identified in such
Transaction Notice.
(ii) Custodian shall, upon receiving such Transaction Notice,
Computer Tape and items listed in Section 3.1 hereof for such Contracts
from Seller relating to the purchase of Contracts pursuant to a
Transaction, immediately advise Buyer and Seller by
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telephone or by facsimile transmission if it determines that such Computer
Tape and Contracts are not so deposited.
(b) Certification.
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(i) Upon receipt by Custodian of a confirmation from Buyer and
the Custodian's Contract Files from Seller with respect to a Transaction,
Custodian shall, with respect to the Contracts referenced in such
Confirmation, execute and deliver to Buyer (with a copy to Seller which
shall be clearly marked as a copy and non-transferrable) one or more
certifications (each, a "Trust Receipt and Certification"), in the form
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attached hereto as Exhibit A and in accordance with Section 3.4 hereof, in
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New York City on or before 1:00 p.m. New York City time on the date of
receipt by Custodian of such Confirmation (but, in any event no later than
one (1) Business Day following receipt thereof).
(ii) In the event of delivery by Buyer to Seller and Custodian of
a notice pursuant to Paragraph 4(a) of the Master Repurchase Agreement
("Margin Call") the Custodian shall, upon receipt of such notice of Margin
Call, Contracts and the related Custodian's Contract Files, execute and
deliver to Buyer (with a copy to Seller which shall be clearly marked as a
copy and non-transferrable) one or more Trust Receipt(s) and
Certification(s) in the form attached hereto as Exhibit A with respect to
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such Contracts and in accordance-with Section 3.4 hereof.
Section 3.3 Transactions Subject to Table Funding.
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(a) Transaction Notice and Delivery of Custodian's Contract Files to
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Escrow Agent.
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Seller shall deliver to Buyer and Custodian a Transaction Notice,
in the form attached hereto as Exhibit C, not later than 12:00 p.m., New
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York City time, at least two (2) Business Days prior to the proposed Table
Funding Closing Date related to a Transaction. Seller shall, at the time of
delivery of the Transaction Notice, also deliver to Buyer a Wire
Instruction Letter, a Disbursement Letter and a Pay-Off Letter. Seller
shall also deliver or cause to be delivered to the Escrow Agent all of the
Closing Documents, including all the items listed in Section 3.1 hereof for
such Contract indentified in such Transaction Notice.
(b) Certifications and Delivery of Custodian's Contract File to
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Custodian.
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(i) Upon receipt by Custodian of (x) a Confirmation from Buyer
with respect to such Transaction subject to such Table Funding Closing Date
and (y) an Escrow Receipt, in the form attached to the Escrow Agreement,
from the Escrow Agent with respect to the Contract subject to such
Transaction, Custodian shall, with respect to such Escrow Receipt, executed
and deliver to Buyer (with a copy to Seller which shall be clearly marked
as a copy and non-transferable) one or more initial trust receipt and
certifications (each an "Initial Trust Receipt and Certification") in the
form attached hereto as Exhibit A-1. Each original Initial Trust Receipt
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and Certification shall be
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delivered to Buyer in New York City on or before 11:00 a.m., New York
City time, on the next Business Day immediately following the date on
which the Custodian receives such Escrow Receipt.
(ii) Buyer shall, upon receipt of (x) such Initial Trust
Receipt and Certification from the Custodian and (y) Wire Instruction
Letter, Disbursement Letter and Pay-Off Letter from Seller, wire to
the Escrow Agent, as directed in such wire instruction letter, the
Purchase Price for such Contract.
(iii) Seller shall (x) cause the Escrow Agent to deliver to
the Custodian all the items listed in Section 3.1 hereof for such
Contract subject to such Table Funding Closing Date in accordance with
the terms of the Escrow Agreement and (y) deliver to Custodian and
Buyer a Computer Tape and Contract Schedule in respect of such
Contract, in each case such delivery must be made for receipt thereof
by Custodian within five (5) Business Days after the date on which the
Escrow Agent receives from Buyer, by wire transfer, the Purchase Price
for such Contract.
(iv) Custodian shall, within one (1) Business Day after
receipt of (x) the Contract and related Custodian Contract File
subject to such Escrow Receipt and the related Initial Trust Receipt
and Certification from the Escrow Agent and (y) the related Computer
Tape and Contract Schedule from Seller, execute and deliver to Buyer
an original, final Trust Receipt and Certification in the form
attached hereto as Exhibit A-1 and in accordance with Section 3.4
-----------
hereof with respect to the Contract related to such Initial Trust
Receipt and Certification. Buyer shall, upon receipt of such original
Trust Receipt and Certification, promptly deliver to Custodian the
related original Initial Trust Receipt and Certification, and such
Initial Trust Receipt and Certification shall be deemed to be of no
further force and effect at the time Buyer receives such Trust Receipt
and Certification.
Section 3.4. Trust Receipt and Certification
-------------------------------
(a) The Custodian shall, in each Trust Receipt and
Certification, certify and confirm as to each Contract listed on the Contract
Schedule to the Transaction Notice or Computer Tape delivered with such
Transaction Notice, as applicable, that except as noted on the schedule of
exception report attached to the related Trust Receipt and Certification:
(i) all documents required to be delivered to it pursuant
to subparagraphs (iii) through (xi), inclusive, of Section 3.1 hereof are in
the Custodian's possession, expect as otherwise noted in such exception report;
(ii) all documents contained in the Custodian's Contract
File have been reviewed by the Custodian and appear regular on their face and
relate to such applicable Contracts and neither of the Loan Documents nor the
Assignments contains any notations on their face which appear to evidence any
claims, liens, security interests, encumbrances or other restrictions or
transfers, except as otherwise noted,
12
(iii) each Note and other related Loan Documents in the
Custodian's Contract File bears an original signature or signatures purporting
to be the signature or signatures of the person or persons named as the maker or
Obligor under the Contract;
(iv) if the Note does not name "[Seller"] as the holder or
payee, the Note bears the original endorsements that complete the chain of
ownership from the original holder or payee to "[Seller]";
(v) the original of each Assignment of each Loan Document
required under Section 3.1 hereof and any intervening assignment of such Loan
Documents bear the original signature purporting to be the signature of the
named obligee, mortgagee, secured party or beneficiary, as applicable, (and any
other necessary party including subsequent assignors) and that such Assignment
and any such intervening assignment complete the chain of title from the
originator to the "[Seller]";
(vi) each Note has been endorsed as noted in Section 3.1 hereof
and each Assignment has been completed as noted in Section 3.1 hereof; and
(vii) based on its review of the Custodian's Contract Files with
respect to each such Contract listed on the Contract Schedule to the Transaction
Notice or the Computer Tape delivered with such Transaction Notice, as
applicable, the information set forth on such Contract Schedule or Computer Tape
accurately reflects the information contained in each Custodian's Contract File
as to the information set forth in Exhibit D hereto.
(b) On each Repurchase Date, Buyer shall cause the applicable Trust
Receipt(s) and Certification(s) issued in connection with Transactions
terminating on such Repurchase Date in accordance with the Repurchase Agreement
to be delivered via overnight courier to Custodian for cancellation within one
(1) Business Day after such Repurchase Date. In the event that any Contracts
covered by such surrendered Trust Receipt(s) and Certification(s) are not the
subject of the repurchase Transaction in question, Custodian shall issue and
deliver to Buyer via overnight courier a replacement Trust Receipt and
Certification covering such Contracts which are not the subject of such
repurchase Transaction.
Section 3.5 Release of Custodian's Contract Files. From time to time
-------------------------------------
and as appropriate for the repossession of or foreclosure on the collateral
securing any of the Contracts, pay off, full prepayment and repurchase,
Custodian is hereby authorized, upon written request of Seller in the form
annexed hereto as Exhibit B, to release to the Seller or the Seller's designee
---------
the related Custodian's Contract File or the documents set forth in such
request; provided, however, that such release of Custodian's Contract Files by
-------- -------
Custodian upon request by the Seller shall be operative only upon written
authorization of Buyer. All documents so released to the Seller or the Seller's
designee shall be held by it in trust for the benefit of the Buyer. Seller shall
return or cause to be returned to Custodian Custodian's Contract File, or such
other documents which have been released to Seller or Seller's designee, when
Seller's need therefor in connection with such foreclosure or repossession no
longer exists, unless the Contract shall be liquidated, in which case, upon
receipt of a certification to this effect from Seller to Custodian in the form
annexed hereto as Exhibit B, the Seller's request shall be released by Custodian
---------
to Seller and Custodian shall thereupon reflect any such liquidation on the
Contract Schedule. The
13
limitation of this Section 3.5 shall not apply to release of files to Seller
under Section 3.6 or Section 3.10 below.
Section 3.6. Repurchase. Upon the repurchase of any Contract
----------
pursuant to this Agreement, the Repurchase Agreement or the payment in full of
any Contract, which shall be evidenced by Custodian's receipt of the Seller's
request for release in the form annexed hereto as Exhibit B, Custodian shall
---------
promptly release the related Custodian's Contract File to the Seller.
Section 3.7. Custodial Register. Custodian shall cause such books
------------------
and records at its corporate trust office or other registry maintained with
respect to the Contracts to reflect the ownership by Buyer of the Contracts
maintained by Custodian pursuant to this Agreement.
Section 3.8. Power of Attorney. Seller and Buyer hereby grant to the
-----------------
Custodian a power of attorney, with full power of substitution, to take in the
name of Seller and Buyer all steps which are necessary or appropriate to
endorse, negotiate, deposit or otherwise realize on any instrument or writing of
any kind held or transmitted by Seller or Buyer or transmitted or received by
Custodian in connection with any Contract. The power of attorney that Seller and
Buyer have granted to the Custodian pursuant to this Section 3.8 may be revoked
by the Buyer at any time.
Section 3.9. No Service Charge for Sale or Transfer of Contracts.
---------------------------------------------------
No service charge shall be made for any sale or transfer of Contracts, but
Custodian may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any sale or transfer
of Contracts. Notwithstanding the foregoing, Custodian may charge a reasonable
fee in connection with the release of the Custodian's Contract Files or any
document contained therein pursuant to Section 3.5, which fee shall be paid by
Seller.
Section 3.10 Buyer May Reject Contracts.
--------------------------
(a) Buyer may refuse to purchase any Contract offered for sale by
Seller under the Repurchase Agreement or may, by notice to Custodian, require an
immediate repurchase of any such Contract, in each case under the circumstances
provided in the Repurchase Agreement.
(b) If a Contract is not purchased by the Buyer on a Purchase Date
because of a defect in the related Contract File, or if the Buyer gives written
notice to the Custodian that it will not be purchasing a specific Contract for
any other reason, the Custodian with return the Custodian's Contract File
relating to the Contract to the Seller (or such other person as the Seller shall
indicate in writing), at the Seller's expense, within two (2) Business Days of
such Purchase Date unless otherwise instructed in writing by the Buyer or, after
such Purchase Date, the Seller.
14
ARTICLE IV
REPURCHASE DATE PAYMENTS; CONTRACT ACCOUNT
Section 4.1. Repurchase Date Payments. One (1) Business Day prior to
------------------------
each Repurchase Date, Buyer shall inform Custodian via facsimile of the amount
payable by Seller to Buyer on such Repurchase Date pursuant to the Repurchase
Agreement and Custodian shall, on such Repurchase Date, transfer such amount
from the Contract Account to the Buyer's Account in accordance with Section 4.2
hereof. If Available Funds on deposit in the Contract Account are not sufficient
on such date to pay amounts payable pursuant to the Repurchase Agreement in
full, the Custodian shall notify Buyer and Seller of such circumstance by
telephone or telecopy and Seller shall deposit to the Contract Account in
immediately available funds the amount of such deficiency.
Section 4.2. Contract Account.
----------------
(a) Seller shall establish and maintain the Contract Account with
First Bank National Association. The Contract Account shall be entitled "First
Bank National Association, as Custodian for CS First Boston Mortgage Capital
Corp." Seller shall pay into the Contract Account not more often than once each
day, as promptly as practicable following the receipt thereof by Seller (but in
any event not later than the second Business Day following receipt) all amounts
received in respect of the Contracts, including all loan payments from Obligors,
liquidation proceeds (net of liquidation expenses) or other recoveries in
respect of the Contracts. All amounts paid into the Contract Account under this
Agreement shall be held in trust for the Buyer until payment of any such amounts
is authorized hereunder.
(b) Custodian shall on a monthly basis as directed in writing by
Buyer make withdrawals from the Contract Account amounts deposited in such
account pursuant to this Section 4.2 for the following purposes and in the
following priority:
(i) to make payments to Buyer's Account pursuant to Section 4.1
hereof;
(ii) to pay the Monthly Servicing Fee to the Servicer;
(iii) to release to Seller on each Repurchase Date (and such other
date or dates as CSFB shall have consented to in writing) Available
Funds remaining after payments to the Buyer pursuant to Section 4.1
hereof;
(iv) to withdraw and return to Seller any amount deposited in the
Contract Account that was not required to be deposited by Seller
therein.
(c) If Seller so directs, the Custodian shall, in the name of
Custodian, as custodian, invest the amounts in the Contract Account in such
investments as are then generally acceptable to S&P for reinvestment of funds in
transactions rated "AAA" by S&P. Such investment shall mature not later than one
(1) Business Day prior to the next succeeding Repurchase Date. All net income
and gain from such investments shall be deposited in the
15
Contract Account and all such net gains and any losses on reinvestment of funds
deposited in the Contract Account shall be reimbursed by the Seller and
deposited into the Contract Account.
Section 4.3. Simultaneous Transfers. The payment of cash for Contracts
----------------------
and the related transfer of Contracts pursuant to any provision of this
Agreement shall be deemed to occur simultaneously.
Section 4.4. Transfer of Contracts.
---------------------
(a) Upon Custodian receiving written certification from Buyer of a
Repurchase Agreement Default, Custodian shall (x) follow the instructions of the
non-defaulting party including instructions regarding the release of the related
Contracts from this Agreement and the transfer of such Contracts and shall do
such other acts and execute such other documents as may be deemed reasonably
necessary by such non-defaulting party to comply with such instructions and (y)
follow the instructions of such nondefaulting party with respect to payment of
related amounts from the Contract Account.
(b) Upon receipt by Custodian of a written certification of Buyer of
a breach of a representation or warranty by Custodian, or the failure of
Custodian to perform a covenant, under this Agreement, and any applicable cure
period has elapsed, Custodian shall (x) follow the instructions of the Buyer
regarding the release from this Agreement and the transfer of such Contracts and
shall do such other acts and execute such other documents as may be deemed
reasonably necessary to comply with such instructions and (y) follow the
instructions of Buyer with respect to payment of related amounts from the
Contract Account.
16
ARTICLE V
SERVICING
Section 5.1. Duties of Servicer: Standard of Care.
------------------------------------
(a) The parties hereto agree and acknowledge that, notwithstanding the
purchase and sale of the Contracts contemplated hereby, the Seller shall
continue to service the Contracts (in such capacity, the "Servicer") for the
benefit of Buyer and, if Buyer shall exercise its rights to sell the Contracts
pursuant to this Agreement prior to the related Repurchase Date, Buyer's
assigns; provided, however, that the obligation of Servicer to service Contracts
-------- -------
for the benefit of Buyer as aforesaid shall cease upon the payment to Buyer of
the Repurchase Price therefor.
(b) The Servicer shall have full power and authority to manage,
service, administer and make collections on the Contracts, subject, however, to
the terms and conditions of this Agreement. The Servicer's duties shall include
collection and posting of all payments, responding to inquiries of Obligors on
the Contracts and accounting for collections. Without limiting the generality of
the foregoing, the Servicer is authorized and empowered to execute and deliver,
on behalf of itself and Buyer any and all instruments of satisfaction of
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to the Contracts or to the Collateral securing such
Contracts. In performing its duties and obligations hereunder, the Servicer
shall comply with all applicable state and federal laws and shall exercise that
degree of skill and care consistent with the highest degree of skill and care
that the Servicer exercises with respect to franchise loans serviced by the
Servicer for its own account or others and that is consistent with prudent
industry standards ("Accepted Servicing Standards").
(c) If the Servicer shall commence a legal proceeding to enforce a
Contract, which has been purchased by Buyer and not repurchased by Seller in a
Transaction, Buyer shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Contract to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Contract on the ground that it shall not be a real party in interest
or a holder entitled to enforce such Contract, Buyer shall, at the Servicer's
expense and direction, take steps to enforce such Contract, including bringing
suit in its name. Buyer shall upon the written request of the Servicer furnish
the Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 5.2. Collection of Payments. The Servicer shall make diligent
----------------------
efforts to collect all payments called for under the terms and provisions of the
Contracts as and when the same shall become due and payable consistent with the
terms of the related Contract, this Agreement and in accordance with Accepted
Servicing Standards. The Servicer shall allocate collections between principal
and interest in accordance with the terms of the Contracts and in accordance
with the Accepted Servicing Standards. The Servicer may grant extensions,
rebates or adjustments on a Contract consistent with its customary practices and
ordinary course of business; provided, however, that except as required or
-------- -------
permitted by law in connection with disaster, military and other credit relief
policies and procedures implemented by the Servicer with respect to Contracts in
connection with defaults thereon, the Servicer shall not modify the
17
original due dates of the scheduled payments on any Contract for more than one
month for each full year of the original term of such Contract or change the
dollar amount of the scheduled payments thereunder. The Servicer may in its
discretion waive any late payment charge or any other fees that may be collected
in the ordinary course of servicing a Contract.
Section 5.3. Additional Servicing Duties and Obligations with respect
--------------------------------------------------------
to Contracts.
-------------
(a) Maintenance of Security Interests in Collateral. The Servicer
-----------------------------------------------
shall take such steps as are necessary to maintain perfection of the security
interest created by each Contract in the related Collateral and any related
property in the name of Buyer. The Servicer is hereby authorized to take such
steps as are necessary to reperfect such security interest on behalf of Buyer in
the event of the relocation of the Collateral or for any other reason. The
Servicer shall not release any Collateral securing a Contract from the security
interest granted by such Contract in whole or in part except (i) as provided
under such Contract or (ii) in the event of payment in full by the Obligor or
other discounted settlement of the obligations of the Obligor thereunder in
connection with a workout of such Contract.
(b) Maintenance of Insurance.
------------------------
(i) The Servicer shall cause each Obligor to maintain for each
Mortgaged Property and related Collateral all insurance coverage as is required
under the related Loan Documents, provided that if and to the extent that any
Loan Document permits the holder thereof any discretion (by way of consent,
approval or otherwise) as to the insurance coverage that the related Obligor is
required to maintain, the Servicer shall exercise such discretion in a manner
consistent with the Accepted Servicing Standards, with a view towards requiring
insurance comparable to that required under other Contracts with express
provisions governing such matters. Each such insurance policy shall be issued by
a generally accepted carrier which is licensed to issue such policies in the
jurisdiction in which the Collateral is located.
(c) Realization Upon Defaulted Contracts.
------------------------------------
(i) The Servicer, on behalf of the Buyer, and with Buyer's prior
written consent, shall foreclose upon, repossess, sell at a private or public
sale, or otherwise take title, in the name of Custodian on behalf of the Buyer,
to the properties, including the Collateral, securing a Contract related to any
Defaulted Contract and as to which no satisfactory arrangements, in the
reasonable opinion of Servicer, can be made for collection of the delinquent
payment. In connection with such foreclosure, repossession, private or public
sale or other transfer of title, the Servicer shall follow such practices and
procedures as it shall deem necessary or advisable that are customary and usual
in its servicing of such Contracts and in accordance with the Accepted Servicing
Standards in order to realize upon the Collateral and maximize the recovery of
such Collateral. In any case in which the Equipment shall have suffered damage,
the Servicer shall not expend funds in connection with any repair or towards the
repossession of such Collateral unless it shall determine in its discretion that
such repair and/or repossession will increase the liquidation proceeds by an
amount greater than the amount of such expense.
18
(ii) Notwithstanding the foregoing, the Servicer shall not obtain
title to a Mortgaged Property or other Collateral by deed-in-lieu of foreclosure
or otherwise, or take any other action with respect to any Mortgaged Property or
other Collateral, if, as a result of any such action, the Custodian could, in
the reasonable judgment of Servicer, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an owner or operator of such Mortgaged
Property or other Collateral within the meaning of CERCLA or any comparable law,
unless Servicer has taken into account, in accordance with Accepted Servicing
Standards, the existence of any known condition upon or impacting the Mortgaged
Property or other Collateral in the nature of hazardous substances, hazardous
wastes, infectious waste, toxic substance, solid wastes and so forth, as such
terms now or in the future are defined or listed in, or otherwise classified
pursuant to, or regulated by, any applicable environmental laws, including, but
not limited to, all present and future federal, state or local laws, ordinances,
rules, regulations, decisions and other requirements of governmental authorities
relating to the environment or to any hazardous substance.
(iii) The Servicer shall have the right to determine, in accordance
with the Accepted Servicing Standards, the advisability of seeking to obtain a
deficiency judgment if the state in which the Collateral is located and the
terms of the Contract permit such a action and shall, in accordance with such
Accepted Servicing Standards, retain Buyer's right to, and seek, a deficiency
judgement against the Obligor on a foreclosed Contract, unless otherwise
instructed by Buyer.
(iv) On behalf of Buyer, the Servicer shall use diligent efforts to
pursue any claims under the Insurance Policies.
(v) All (x) liquidation proceeds (net of reasonable costs and
expenses), (y) all proceeds received under any Insurance Policy, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property or
other Collateral or released to Obligor in accordance with Accepted Servicing
Standards, the Loan Documents and applicable law, and (z) all awards or
settlements in respect of condemnation proceeds or eminent domain affecting any
Mortgaged Property or other Collateral which are not released to the Obligor in
accordance with Accepted Servicing Standards, the applicable Loan Documents and
applicable law shall be deposited in the Contract Account.
(d) Due-on-Sale Clause; Assumption and Substitution Agreements. When
----------------------------------------------------------
a Collateral has been or is about to be conveyed by the Obligor, the Servicer
shall, to the extent it has knowledge of such conveyance or prospective
conveyance, exercise its rights to accelerate the maturity of the related
Contract under a "due on sale" clause contained in the related Loan Documents;
provided, however, that the Servicer shall not exercise any such right if (x)
-------- -------
the "due on sale" clause, in the reasonable belief of the Servicer, is not
enforceable under applicable law; or (y) Buyer approves a waiver of the due-on-
sale clause; or (z) in the reasonable belief of the Servicer, the exercise of
the "due-on-sale clause would likely result in foreclosure or repossession or a
default by the Obligor giving rise to a loss on the Contract, and provided,
--------
further, that the Servicer may refrain from exercising any such right with the
-------
Buyer's prior consent. In the event of any waiver of the enforcement of, or
decision not to enforce, a due-on-sale clause on any Contract, the Servicer
shall enter into an assumption and modification agreement with a new Obligor
consistent with the Accepted Servicing Standards.
19
Section 5.4. [Reserved].
----------
Section 5.5. Notice of Default. The Servicer shall deliver to Buyer
-----------------
and the Custodian, promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice of any event
which with the giving of notice or lapse of time, or both, would become an
Repurchase Agreement Default.
Section 5.6. Servicer Expenses. The Servicer shall be required to pay
-----------------
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer, expenses incurred in connection with distributions and reports to
Buyer or Custodian, and fees and expenses of any subservicer, successor Servicer
or any other subcontractor.
Section 5.7. Collections. The Seller and Servicer covenant and agree
-----------
to procure all checks and other payments with respect to the Contracts and
insurance proceeds ("Collections") and to make such checks or other forms of
payment immediately available to Buyer by causing their deposit into the
Contract Account within one (1) Business Day of receipt or as otherwise directed
by Buyer in writing. The Seller, Servicer and Custodian covenant and agree to
notify Buyer if Collections have not been deposited to the Contract Account for
a period of two (2) Business Days. Any amounts received or collected by the
Seller or the Servicer shall be held in trust by them for the benefit of Buyer
and immediately remitted to the Contract Account or otherwise as instructed by
Buyer.
Section 5.8. Representations of Servicer. The Servicer hereby
---------------------------
represents and warrants to Buyer that at the date of execution of this Agreement
and at each Purchase Date:
(i) the Servicer is duly organized, validly existing and in good
standing under the laws of the state of its organization and is qualified to
transact business in and is in good standing under the laws of each state in
which it is necessary for it to be so qualified in order to carry on its
business as now being conducted and has all licenses necessary to carry on its
business as now being conducted; the Servicer has the full power and authority
to own its property, to carry on its business as presently conducted, and to
execute, deliver and perform each of the Transaction Documents to which it is a
party; the execution, delivery and performance of each of the Transaction
Documents to which it is a party (including all instruments of transfer to be
delivered pursuant to any such Transaction Documents to which it is a party) by
the Servicer and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized; each of the Transaction Documents
to which it is a party evidences the valid, binding and enforceable obligation
of the Servicer (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law) and all requisite corporate action has been
taken by the Servicer to make each of the Transaction Documents to which it is a
party valid and binding upon the Servicer (subject as aforesaid in the preceding
clause);
(ii) the Servicer is not required to obtain the consent of any other
party or obtain the consent, license, approval or authorization of, or make any
registration or declaration
20
with any governmental authority, bereau or agency in connection with the
execution, delivery, performance, validity or enforceability of each of the
Transaction Documents to which it is a party;
(iii) the consummation of the transactions comtemplated by the
Transaction Documents to which it is a party will not result in the breach of
any term or provision of the certificate of incorporation or by-laws of the
Servicer or result in the breach of any term or provision of, or conflict with
or constitute a default (with or without notice, lapse of time or both) under or
result in the acceleration of any obligation under, any agreement, indenture or
loan or credit agreement or other instrument to which the Servicer or its
property is subject, or result in the creation or imposition of any lien upon
any of the properties pursuant to the terms of any such agreement indenture or
loan or credit agreement or other instrument (aside from the lien created
pursuant to the Transaction Documents) or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Servicer or its
property or the Contracts are subject;
(iv) the Servicer is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject to or in
violation of any statue, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
adversely affects, or may in the future adversely affect, the ability of the
Servicer to perform its obligations under this Agreement or the interest of the
Buyer in any respect;
(v) there are no actions, suits, proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (A) asserting the invalidity of this Agreement or
any of the Transaction Documents to which it is a party, (B) seeking to prevent
the consummation of any of the transactions contemplated by the Transaction
Documents to which it is a party, (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement or any
of the Transaction Documents to which it is a party, or (D) that could have a
material and an adverse effect on the Contracts; and
(vi) the chief executive office of the Servicer is located at
Five ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 5.9. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of Servicer. Any Person (a) into which the Servicer may be merged or
-----------------------
consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party, or (c) which may succeed to the properties and assets
of the Servicer substantially as a whole, which Person executed an agreement of
assumption to perform every obligation of the Servicer hereunder, shall be the
successor to the Servicer under this Agreement without further act on the part
of any of the parties to this Agreement; provided, however, that (1) the
-------- -------
Servicer shall have delivered to Buyer and the Custodian 45 days prior written
notice of any such merger or consolidation; (2) immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default shall have occurred and
be continuing; (3) the Servicer shall have delivered to Buyer a certificate
stating that such
21
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent provided for in this Agreement
relating to such transaction have been complied with; and (4) the Servicer shall
have delivered to Buyer an opinion of counsel stating that, in the opinion of
such counsel, either (i) all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of Buyer in the Contracts and reciting the
details of such filings, or (ii) no such action shall be necessary to preserve
and protect such interests.
Section 5.10. Resignation. Subject to the provisions of Section 5.9,
-----------
the Servicer shall not resign from the obligations and duties hereby imposed on
it as Servicer under this Agreement except upon a determination by the board of
directors of the Servicer that the performance of its duties under this
Agreement shall no longer be permissible under applicable law (any such
determination permitting the resignation of the Servicer shall be evidenced by
an opinion of counsel to such effect delivered to Buyer and the Custodian) and
that the Servicer cannot reasonably comply therewith. No such resignation shall
become effective until a successor interim servicer acceptable to Buyer shall
have assumed the responsibilities and obligations of the Servicer in respect of
the Contracts provided hereby.
Section 5.11. Fidelity Bond, Errors and Omissions Insurance. The
----------------------------------------------
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet applicable requirements on all officers, employees or
other persons acting in any capacity with regard to the Contracts to handle
funds, money, documents and papers relating to the Contracts. Any such fidelity
bond and errors and omissions insurance shall be in appropriate form in respect
to the Contract and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. No provision of this Section 5.11 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be in an amount
which is customary and standard in the industry for servicers that service a
similar portfolio of Contracts and that are in accordance with the Accepted
Serving Standards. Upon request of the Buyer, the Servicer shall cause to be
delivered to Buyer a certified true copy of the fidelity bond and errors and
omissions insurance policy and a statement from the surety and the insurer that
such fidelity bond and errors and omissions insurance policy shall in no event
be terminated or materially modified without thirty (30) days' prior written
notice to the Buyer.
Section 5.12. [Intentionally Omitted].
Section 5.13. Monthly Servicing Report. On or before the fifteenth
------------------------
(15th) day of each calendar month (or, if such day is not a Business Day then
the next succeeding Business Day) Seller shall deliver to Buyer and Custodian a
Monthly Servicing Report with respect to the immediately preceding Collection
Period setting forth the following information, and such other information as
Buyer may from time to time request:
(i) The aggregate number of Contracts subject to Transactions
and the number of Contracts subject to each Transaction and
the number of Contracts subject to each Transaction;
22
(ii) The aggregate of payments received on such Contracts
during the preceding Collection Period allocable to
principal and the total payments received on each such
Contract during the preceding Collection Period
allocable to principal;
(iii) The aggregate of payments received on such Contracts
during the preceding Collection Period allocable to
interest and the total payments received on each such
Contract during the preceding Collection Period
allocable to interest;
(iv) The aggregate Outstanding Principal Amount of such
Contracts as of the close of business on the last day
of the preceding Collection Period, after giving effect
to payments allocated to principal on such day, and the
Outstanding Principal Amount of each such Contract as
of the close of business on the last day of the
preceding Collection Period, after giving effect to
payments allocated to principal on such day;
(v) The weighted average annual percentage rate of such
Contracts as of the beginning of the preceding
Collection Period and the weighted average annual
percentage rate of each such Contract as of the
beginning of the preceding Collection Period;
(vi) The number of Contracts, and the outstanding principal
balance of such Contracts and of each such Contract,
that were (x) 1 to 30 days past due, (y) 31 to 60 days
past due, and (z) 61 or more days past due as of the
end of the preceding Collection Period;
(vii) Gross charge-offs, recoveries and net losses for the
preceding Collection Period for each Contract;
(viii) (A) The number and aggregate principal balance of all
Contracts in respect of which the related Collateral
has been repossessed or foreclosed upon during the
preceding Collection Period and (B) the number and
aggregate principal balance of all Contracts that were
liquidated (otherwise than pursuant to voluntary
prepayment) during such Collection Period;
(ix) (A) The principal balance of each such Contract in
respect of which the related Colleteral has been
repossessed or foreclosed upon during the preceding
Collection Period and (B) the principal balance of each
such Contract that was liquidated (otherwise than
pursuant to voluntary prepayment) during such
Collection Period;
(x) First payment defaults for the preceding Collection
Period;
(xi) Obligor bankruptcy filings for the preceding Collection
Period; and
23
(xii) Repossession and liquidation expenses for the preceding
Collection Period.
Section 5.14. Servicer Termination Event. "Servicer
--------------------------
Termination Event" means the occurrence of any of the following:
(i) Any failure by Servicer to make any deposit into an
account required to be made hereunder and the
continuance of such failure for a period of one (1)
Business Day after Servicer has become aware, or should
have become aware, that such deposit was required;
(ii) Failure on Servicer's part to observe or perform in any
respect any covenant or agreement in this Agreement,
which failure continues unremedied for fifteen (15)
days after the date on which written notice of such
failure, requiring the same to be remedied, shall have
been given to Servicer by Custodian or Buyer or to
Servicer and Custodian by Buyer;
(iii) Any assignment by Servicer of its duties or rights
hereunder except as specifically permitted hereunder,
or any attempt to make such an assignment;
(iv) A court or other governmental authority having
jurisdiction in the premises shall have entered a
decree or order for relief in respect of Servicer in an
involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in
effect, or shall have appointed a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar
official) of Servicer, as the case may be, for any
substantial liquidation of its affairs, and such order
remains undischarged and unstayed for at least thirty
(30) days; or
(v) Servicer shall have commenced a voluntary case under
any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall have consented
to the entry of an order for relief in an involuntary
case under any such law, or shall have consented to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or
sequestrator (or other similar official) of Servicer or
for any substantial part of its property, or shall have
made any general assignment for the benefit of its
creditors, or shall have failed to, or admitted in
writing its inability to, pay its debts as they become
due, or shall have taken any corporate action in
furtherance of the foregoing.
Section 5.15. Transfer and Successor Servicer. If a Servicer
------------------------------
Termination Event has occurred and is continuing, Buyer may, by written notice
to Servicer, terminate all
24
(but not less than all) of Servicer's management, administrative, servicing and
collection functions (such termination being herein called a "Servicer
Transfer"). On receipt of such notice (or, if later, on a date designated
therein), all authority and power of Servicer under this Agreement, whether with
respect to the Contracts, the Collateral, the Custodian's Contract Files or
otherwise shall pass to and be vested in Custodian pursuant to and under this
Sections 5.15 and 5.16 hereof; and, without limitation, Custodian is authorized
and empowered to execute and deliver on behalf of Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments and to do any and all
acts of things necessary or appropriate to effect the purposes of such notice of
termination. Each of Buyer and Servicer agrees to cooperate with Custodian in
effecting the transfer of the responsibilities and rights of Servicer hereunder,
including, without limitation, execution of notices in accordance with
applicable state and federal law and the transfer to Custodian for
administration by it of all cash amounts which shall at the time be held by
Servicer for deposit, or have been deposited by Servicer, in the Contract
Account or for its own account in connection with its services hereafter or
thereafter received with respect to the Contracts. Servicer shall be entitled to
receive any other amounts which are payable to Servicer under this Agreement, at
the time of the termination of its activities as Servicer. Servicer shall
transfer to the new Servicer (i) Servicer's records relating to the Contracts in
such electronic form as the new Servicer may reasonably request, (ii) any
Contracts and the Custodian's Contract Files in Servicer's possession, (iii)
Servicer's files relating to the Contracts, and (iv) all funds in an account
related to the Contracts and the related documents and statements held by it
hereunder and the Servicer shall account for all such funds.
Section 5.16. Custodian to Act; Appointment of Successor.
------------------------------------------
On and after the time Servicer receives a notice of termination
pursuant to Sections 5.14 and 5.15 hereof, Custodian shall be the successor in
all respects to Servicer in its capacity as Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on Servicer
by the terms and provisions hereof, and Servicer shall be relieved of such
responsibilities, duties and liabilities arising after such Service Transfer;
provided, however, that Custodian shall not be liable for any act or omissions
-------- -------
of Servicer occurring prior to such Service Transfer or for any breach by such
Servicer of any of its representations and warranties contained herein or in any
related document or agreement. As compensation therefor, Custodian shall, except
as provided in Section 5.15 and in this Section 5.16, be entitled to such
compensation as Servicer would have been entitled to hereunder if no such notice
of termination had been given. Notwithstanding the above, Custodian may, if it
is legally unable so to act, appoint, with the prior written consent of Buyer, a
successor to Servicer hereunder. Such successor Servicer shall succeed to the
responsibilities, duties and liabilities of Servicer hereunder upon delivering
to Custodian and Buyer a written assumption of such responsibilities, duties and
liabilities in form and substance satisfactory to Buyer and the Custodian.
Pending appointment of a successor to Servicer hereunder, unless Custodian is
prohibited by law from so acting, Custodian shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption,
Custodian may make such arrangements for the compensation of such successor out
of payments on Contracts as it and such successor shall agree; provided,
--------
however, that no such compensation shall be in excess of the Monthly Servicing
-------
Fee. Notwithstanding the above, the Custodian shall, if it shall be unwilling or
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established financial
25
institution, having a net worth of not less than $50,000,000 and whose regular
business shall include the servicing of franchise loans, as the successor to the
Servicer under this Agreement; provided that such successor Servicer shall be
reasonably acceptable to Buyer.
26
ARTICLE VI
CUSTODIAN
Section 6.1. Representations, Warranties and Covenants of Custodian.
-------------------------------------------------------
With respect to each Trust Receipt and Certification, Custodian hereby
represents and warrants to, and covenants with Buyer that as of the date such
Trust Receipt and Certification is provided:
(a) Custodian is duly organized, validly existing and in good standing
under the laws of the United States;
(b) Custodian has the full power and authority to hold each Contract
(whether acting alone or through an agent) and to execute, deliver and perform,
and to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this Agreement
constitutes a legal, valid and binding obligation of Custodian, enforceable
against it in accordance with its terms, except as enforcement of such terms may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and by the availability of equitable remedies;
(c) Neither the execution and delivery of this Agreement, the filing
of a financing statement indicating that Buyer is the secured party with respect
to certain Contracts, the delivery of Contracts, the issuance of the Trust
Receipt and Certification, the consummation of the transactions contemplated
hereby or thereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, conditions or provisions of Custodian's charter or by-laws or any
legal restriction or any agreement or instrument to which Custodian is now a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which Custodian or its property
is subject;
(d) Custodian does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in this
Agreement;
(e) There is no litigation pending or threatened, which is determined
adversely to Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or obligations of
Custodian thereunder, or which would have an adverse effect on the financial
condition of Custodian;
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Custodian of or compliance by Custodian with this Agreement or
the consummation of the transactions contemplated hereby;
(g) Custodian is a separate and independent entity from Seller,
Custodian does not own a controlling interest in Seller either directly or
through affiliates and no director or officer of Custodian is also a director or
officer of Seller;
27
(h) Upon written request of Buyer, Custodian shall take such steps as
requested by Buyer to protect or maintain any interest in the Collateral or
other collateral securing the Contract owned by Buyer and any insurance
applicable thereto.
(i) Custodian is not a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects, or may in the future adversely affect, the ability of the
Custodian to perform its obligations under this Agreement or the interest of the
Buyer in any respect;
(j) There are no actions, suits, proceedings or investigations pending
or threatened against the Custodian, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, and (C)
seeking any determination or ruling that might adversely affect the performance
by the Custodian of its obligations under, or the validity or enforceability of,
this Agreement; and
(k) Custodian shall monitor the financing statements filed with
respect to the Contracts naming Buyer as the secured party and shall cause
Seller to file or, if Seller shall fail to file in a timely manner, shall itself
file such amendments and continuation statements with respect thereto necessary
in order to maintain the perfected security interest of Buyer in the Contracts.
Section 6.2. Custodian of Documents. Custodian, either directly or by
----------------------
acting through an agent, shall hold all documents relating to any Contract that
comes into its possession for the exclusive use and benefit of Buyer on and
after the Purchase Date of any Transaction and to the related Repurchase Date
and shall make disposition thereof only in accordance with the instructions
furnished by Buyer. Custodian shall segregate and maintain continuous custody of
all such documents received by it in secure facilities in accordance with
customary standards for such custody and shall not release such documents or
transfer such documents to any other party, including any subcustodian, without
the express written consent of the Buyer, except as provided in Section 3.5
hereof.
Section 6.3. Charges and Expenses. Seller will pay all fees of
--------------------
Custodian in connection with the performance of its duties hereunder in
accordance with written agreements to be entered into from time to time between
Custodian and Seller, including fees and expenses of counsel incurred by
Custodian in the performance of its duties hereunder; provided, however, that
--------- --------
(i) Custodian shall in no event acquired and hereby agrees not to assert (x) any
lien upon any Contract deposited under this Agreement or (y) any claim against
Buyer or Seller, by reason of the failure of Seller to pay any of such fees,
charges or expenses, and (ii) in the event Seller fails to pay the fees and
expenses of Custodian as set forth in such written agreements, Custodian shall
have no obligation to take actions or incur costs in connection with this
Agreement unless Buyer, Seller or another Person has made adequate provision for
payment of Custodian's fees and expenses.
28
Section 6.4. No Adverse Interests. Custodian covenants and warrants to
--------------------
Buyer and Seller that: (i) as of the related date on which Custodian receives
evidence of the perfection of its interest in the related Contracts, it holds no
adverse interest, by way of security or otherwise, in any Contract; and (ii) the
execution of this Agreement and the creation of the custodial relationship
hereunder does not create any interest, by way of security or otherwise of
Custodian in or to any Contract, other than Custodian's rights as custodian
hereunder.
Section 6.5. Inspections. Upon no less than one (1) Business Day prior
-----------
written notice to Custodian, Buyer and Buyer's agents, accountants, attorneys
and auditors will be permitted during normal business hours to examine
Custodian's documents, records and other papers in possession of or under the
control of Custodian relating to the Contracts.
Section 6.6. Insurance. Custodian shall, at its own expense, maintain
---------
at all times during the existence of this Agreement and keep in full force and
effect, (1) fidelity insurance, (2) theft of documents insurance, (3) forgery
insurance subject to deductibles, all in amounts customary and standard in the
industry and with insurance companies reasonably acceptable to Buyer. A
certificate of the respective insurer as to each such policy or a blanket
policy for such coverage shall be furnished to Buyer, upon request, containing
the insurer's statement or endorsement that such insurance shall not terminate
prior to receipt by such party, by registered mail, of ten (10) days advance
notice thereof.
Section 6.7. Limitation of Liability. Custodian assumes no obligation,
-----------------------
and shall be subject to no liability, under this Agreement to Buyer, except that
Custodian agrees to use its best judgement and good faith in the performance of
such obligations and duties as are specifically set forth herein. Custodian
shall not be liable for any action or non-action by it in reliance on advice of
counsel believed by it in good faith to be competent to give such advice.
Custodian may rely and shall be protected in acting upon any written notice,
order, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
Section 6.8. Indemnification. Seller agrees to indemnify Custodian
---------------
against, and to hold it and its employees, officers and directors harmless from,
any liabilities, and any related out-of-pocket expenses, which it may incur in
connection with this Agreement or the Trust Receipt and Certification, other
than any liabilities and expenses arising out of Custodian's negligence or bad
faith or misconduct. Custodian agrees to indemnify each of Buyer and Seller and
their respective employees, officers and directors against out-of-pocket
expenses which either Buyer or Seller or their respective employees, officers or
directors may incur in connection with this Agreement and any Trust Receipt and
Certification and which is caused by Custodian's negligence or bad faith or
misconduct. Such indemnifications shall survive the removal or resignation of
the Custodian hereunder and the termination of this Agreement.
Section 6.9. Removal of Custodian. Buyer, with or without cause, may
--------------------
upon at least thirty (30) days' notice remove and discharge Custodian from the
performance of its duties under this Agreement by written notice from Buyer to
Custodian, with a copy to Seller. Having given notice of such removal, Buyer
promptly shall appoint a successor custodian to act on behalf of Buyer and
Seller, as their respective rights appear herein, by written instrument,
original counterparts of which instrument shall be delivered to Buyer and the
successor
29
Custodian, with a copy to Seller. So long as no Repurchase Agreement Default
shall have occurred and be continuing and there shall not have occurred a
Servicer Termination Event or an Event of Termination pursuant to Section 11 of
the Supplemental Terms, the Seller shall have the right to consent to the
appointment of a successor custodian pursuant to this Section 6.9, which consent
may not be unreasonably withheld. In the event of any such removal, Custodian
shall promptly transfer to the successor Custodian, as directed, and at the
expense of Seller, all Custodian's Contract Files and all funds in the Contract
Account and any other accounts in connection with this Agreement and all related
documents. In the event of any such removal, Seller shall promptly pay the
Custodian its outstanding fees and expenses incurred in connection with this
Agreement. In the event of any such appointment Seller shall be responsible for
the fees and expenses of the existing and successor Custodian in accordance with
Section 6.3 hereof.
Section 6.10. Termination of Custodian. Custodian may terminate its
------------------------
obligations under this Agreement upon at least 120 days' prior notice to
Servicer, Seller and Buyer. In the event of such termination, Buyer shall
appoint a successor Custodian. Upon such appointment, Custodian shall promptly
transfer to the successor Custodian, as directed, all Custodian's Contract Files
and all funds in the Contract Account and any other accounts in connection with
this Agreement and all related documents being administered under this
Agreement. The termination of the Custodian pursuant to this Section 6.10 hereof
shall not become effective until a successor custodian has been appointed
pursuant to this Section 6.10. The payment of such successor Custodian's fees
and expenses shall be solely the responsibility of Seller in accordance with
Section 6.3 hereof. If the endorsements on the Contracts have been completed in
the name of Custodian, Custodian shall execute such endorsements on the
Contracts as Buyer shall request.
Section 6.11. Reliance of 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 believe 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 Agreement; but in any case of any
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 to determine whether or not
it conforms to the requirements of this Agreement.
Section 6.12. Transmission of Custodian's Contract Files. Written
------------------------------------------
instructions as to the method of shipment and shipper(s) the Custodian is
directed to utilize in connection with transmission of Custodian's Contract
Files in the performance of the Custodian's duties hereunder shall be delivered
by the Seller to the Custodian prior to any shipment of any Custodian's Contract
Files hereunder. In the event the Custodian does not receive written
instructions as provided for in the preceding sentence, the Custodian is hereby
authorized and shall be indemnified as provided herein to utilize a nationally
recognized courier service. The Seller 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 Custodian's Contract Files as the Seller deems appropriate. Without limiting
the generality of the provisions of Section 6.8 above, it is expressly agreed
that in no event shall the Custodian
30
have any liability for any losses or damages to any person, including, without
limitation, the Seller, arising out of actions of the Custodian consistent with
instructions of the Seller.
Section 6.13. Authorized Representatives. Each individual designated
--------------------------
as an authorized representative of the Buyer, Seller, Servicer and Custodian,
respectively (an "Authorized Representative"), 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 or Seller or Servicer or
Custodian, as the case may be, and the specimen signature for each such
Authorized Representative of the Buyer, each such Authorized Representative of
the Seller, each such Authorized Representative of the Seller, and each such
Authorized Representative of the Custodian, initially authorized hereunder, is
set forth on Exhibits E, F, G and H hereof, respectively. From time to time, the
Buyer, the Seller, the Servicer and the Custodian may, by delivering to each
other a revised exhibit, change the information previously given pursuant to
this Section 6.13, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding exhibit.
31
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Amendment. This Agreement may be amended from time to
---------
time by Custodian, Buyer and Seller by written agreement signed by such parties.
Section 7.2. Governing Law and Jurisdiction; Waiver of Jury Trial.
----------------------------------------------------
This Agreement shall be construed in accordance with the laws of the State of
New York governing agreements made and to be performed therein, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws. The parties hereto agree to submit to personal
jurisdiction in the State of New York in any action or proceeding arising out of
this Agreement. The parties hereto each hereby waive the right to trial by jury
in any litigation arising hereunder.
Section 7.3. Notices. All demands, notices and communications
-------
hereunder, except as otherwise provided herein, shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, or sent by facsimile transmission to:
(a) in the case of Custodian:
------------------------
First Bank National Association
c/o First Trust
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: DCS-▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
First Trust
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance-▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of Buyer:
--------------------
CS First Boston Mortgage Capital Corp.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
32
Any and all legal notices are to be sent to:
CS First Boston Mortgage Capital Corp.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Director of Credit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) in the case of Seller:
---------------------
Franchise Mortgage Acceptance Company LLC
Five ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) in the case of Servicer:
-----------------------
Franchise Mortgage Acceptance Company LLC
Five ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Servicing Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.4. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.5. No Partnership. Nothing herein contained shall be deemed
--------------
or construed to create a co-partnership or joint venture between the parties
hereto and the services of Custodian shall be rendered as an independent
contractor and not as agent for Buyer or Seller.
Section 7.6. Counterparts. 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 but one and
the same instrument.
Section 7.7. Assignment. No party hereto shall sell, pledge, assign or
----------
otherwise transfer this Agreement without the prior written consent of the other
parties hereto.
Section 7.8. Headings. Section headings are for reference purposes
--------
only and shall not be construed as a part of this Agreement.
33
IN WITNESS WHEREOF, Buyer, Seller and Custodian have caused their
names to be signed hereto by their respective officers there unto duly
authorized, all as of the day and year first above written.
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Buyer
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
LLC,
as Seller and Servicer
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
FIRST BANK, NATIONAL ASSOCIATION,
as Custodian
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
---------
TRUST RECEIPT AND CERTIFICATION
Trust Receipt No.
Aggregate Outstanding
Principal Amount:
[Date]
To: CS First Boston Mortgage Capital Corp.
Five World Trade Center - 7th Floor
New York, New York 10048
Attention: Mortgage Operations
Re: Tri-Party Custodial Agreement, dated as of October
10, 1996 by and among CS First Boston Mortgage
Capital Corp. ("Buyer"), Franchise Mortgage
Acceptance Company LLC ("Seller") and First
Bank National Association ("Custodian")
---------------------------------------
Gentlemen:
In accordance with the provisions of Section 3.4 of the
-----------
above-referenced Custodial Agreement, the undersigned, as Custodial, hereby
confirms and certifies:(1) that it has received all of the documents listed in
subparagraphs (iii) through (ix), inclusive, of Section 3.1 of the Custodial
-----------
Agreement with respect to each Contract [identified on the Contract Schedule
attached to, or on the Computer Tape delivered with, the Transaction Notice
dated] [delivered to Custodian in connection with the notice of Margin Call
dated ______]; (2) that it has reviewed each Custodian's Contract File in
accordance with Section 3.4(a) of the Custodial Agreement and the documents
contained in each Custodian's Contract File appear regular on their face and on
their face satisfy the requirements set forth in Section 3.4(a) of the Custodial
Agreement, subject to the qualifications set forth herein; (3) that it has
physical possession of the Contracts and the other documents in the related
Custodian's Contract File and will continue to hold each Contract and the other
documents in the related Custodian's Contract File for the benefit of Buyer and
its successors and assigns from time to time pursuant to the Custodial Agreement
so long as any Transaction involving such Contract is subject to the Repurchase
Agreement; and (4) the Aggregate Outstanding Principal Amount set forth
hereinabove corresponds to like information contained on such Contract Schedule
or Computer Tape, as applicable. Any exceptions or deficiencies in a Custodial's
Contract File are set forth in an exception report attached hereto and made a
part hereof.
It is herein acknowledged that, in making such certification, the
Custodian was under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable or appropriate for the
A-1
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face.
Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Custodial Agreement.
Custodian further certifies that as to each Contract, Custodian holds
the Contract without notice (a) of any adverse claims, liens or encumbrances,
(b) that any Contract was overdue or has been dishonored, (c) of evidence on the
face of any Contract or other document in Custodian's Contract File of any
security interest therein, or (d) of any defense against or claim to the
Contract by any other party.
Custodian makes no representations or warranties as to the validity,
legality, sufficiency, enforceability, genuineness or prior recorded status of
any of the documents contained in each Custodian's Contract File or the
collectability, insurability, effectiveness or suitability of any Contract, or
the accuracy of the Outstanding Principal Amount.
Upon termination of the Transaction to which this Trust Receipt and
Certification relates and payment of the applicable repurchase price by Seller
thereunder, and Contracts to which this Trust Receipt and Certification relate
shall be returned and released by Custodian to Seller, and this Trust Receipt
and Certification shall be and be deemed to be canceled by Custodian and of no
force and effect.
[CUSTODIAN],
Custodian
By___________________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
INITIAL TRUST RECEIPT AND CERTIFICATION
Initial Certification No.
[Date]
To: CS First Boston Mortgage Capital Corp.
Five World Trade Center - 7th Floor
New York, New York 10048
Attention: Mortgage Operations
Re: Tri-Party Custodial Agreement, dated as of October
10, 1996 ("Custodial Agreement") by and among
CS First Boston Mortgage Capital Corp. ("Buyer"),
Franchise Mortgage Acceptance Company LLC
("Seller") and First Bank National Association ("Custodian")
--------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 3.3 of the
above-referenced Custodial Agreement, the undersigned, as Custodian, hereby
certifies that it has received the Escrow Agent Receipt dated _________, 1996 in
respect to the Contract subject to the Confirmation dated _________, 1996.
Custodian confirms that it holds the Escrow Receipt for the benefit of
Buyer and its successors and assigns from time to time pursuant to the terms and
conditions of the Custodial Agreement so long as any Transaction involving the
Contract in respect of such Escrow Receipt is subject to the Repurchase
Agreement. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Custodial Agreement.
Any holder of this Initial Trust Receipt and Certification, by its
acceptance hereof, acknowledges that this Initial Trust Receipt and
Certification is a temporary receipt which will be cancelled and replaced by a
final Trust Receipt and Certification to be issued by the Custodian to CS First
Boston Mortgage Capital Corp. (or any successor), as initial holder. Upon
receipt by CS First Boston Mortgage Capital Corp. of the related final Trust and
Receipt Certification, this Initial Trust Receipt and Certification shall
automatically be deemed to be non-negotiable and of no further force and effect.
Any holder of this Initial Trust Receipt and Certification (including any
transferee or assignee of the initial holder) should contact the Custodian at
(▇▇▇)▇▇▇-▇▇▇▇ to inquire of the status of this Initial Trust Receipt and
Certification prior to acceptance thereof or in connection with retention
thereof.
A-1-1
FIRST BANK NATIONAL ASSOCIATION,
Custodian
By: _______________________________
Name:
Title:
A-1-2
EXHIBIT B
---------
REQUEST FOR RELEASE OF DOCUMENTS
To: [Custodian]
RE: Tri-Party Custodial Agreement, dated as of October
10, 1996 by and among CS First Boston Mortgage
Capital Corp. ("Buyer"), Franchise Mortgage
Acceptance Company LLC ("Seller") and First
Bank National Association ("Custodian")
--------------------------------------------------
In connection with the administration of the Contracts held by you as
Custodian under the above-referenced Custodial Agreement, we request the
release, and acknowledge receipt, of the (Custodian's Contract File/[specify
documents) for the Contract described below, for the reason indicated.
Obligor's Name. Address & Zip Code:
----------------------------------
Contract Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
_______ 1. Contract Paid in Full.
_______ 2. Contract Repurchased Pursuant to the Repurchase Agreement.
_______ 3. Contract Liquidated.
_______ 4. Contract in Foreclosure or Repossession Proceedings.
_______ 5. Other (explain) _____________________________________________
_____________________________________________
If box 1, 2 or 3 above is checked, and if all or part of Custodian's
Contract 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 Contract.
B-1
If box 4 or 5 above is checked, upon or 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.
[SELLER],
Seller
By_____________________________________
Name:
Title:
Date:
Documents returned to Custodian:
[CUSTODIAN]
Custodian
as Servicer
By________________________________
Name:
Title:
Date:
B-2
EXHIBIT C
---------
FORM OF TRANSACTION NOTICE
CS First Boston Mortgage Capital Corp. Transaction No.____________
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
[Custodian's Name and Address]
Ladies and Gentlemen:
The undersigned executes and delivers this notice ("Notice") pursuant to
the requirements of the Master Repurchase Agreement, dated as of October 10,
1996 and Annex I, Additional Supplemental Terms dated as of October 10, 1996, in
each case between CS First Boston Mortgage Capital Corp. ("Buyer") and Franchise
Mortgage Acceptance Company LLC ("Seller"), and the Tri-Party Custodial
Agreement for Contracts, dated as of October 10, 1996 (the "Custodial
Agreement"), among Seller, Buyer and First Bank National Association
("Custodian") in connection with the submission for sale thereunder on
__________ 199_ (the "Purchase Date") of the Contracts indentified on the
Computer Tape and the Contract Schedule each delivered herewith and the delivery
of the related Custodian's Contract Files to Custodian pursuant to Section 3.1
of the Custodial Agreement. All capitalized terms used in this Notice without
definition shall have the same meanings herein as they have in the Custodial
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 Transaction
Documents and any other related document are true and accurate as of the
date of this Notice.
3. The Contracts, which are indentified on such Computer Tape,
satisfy the requirements of the eligibility set forth in the Transaction
Documents and all related agreements between Buyer and Seller.
4. Upon payment to Seller by Buyer of the Purchase Price in respect
of the Transaction involving the Contracts, all of Seller's right
(including the power to convey title thereto), title and interest in and to
each document constituting the Custodian's Contract Files delivered to
Custodian or held by or on behalf of Seller with respect to each purchased
Contract, shall be transferred, assigned, set over and otherwise conveyed
to Buyer.
5. The general terms of the sale are:
A. Number of Contracts:
B. Outstanding Principal Amount of the Contracts as of the
Purchaser Date:_______
C. Purchase Date:_____
D. Table Funding Date:_____
E. Repurchase Date:______
F. Characteristics of each Contract:______
[for each Contract attach a Contract Schedule in the form
attached hereto as Exhibit D]
[SELLER]
By:______________________________
Name:____________________________
Title:___________________________
C-1
EXHIBIT D
---------
FORM OF CONTRACT SCHEDULE
[For Each Contract]
(1) Name of Contract:
(2) Loan Number:
(3) Originated by:
(4) Bought form (if applicable):
(5) Obligor's name and address:
(6) Contract Rate:
(7) Original term:
(8) Original principal balance:
(9) Remaining balance on the Contract as of the proposed Purchase Date:
(10) The monthly due date with respect to scheduled payments on the
Contract:
(11) Remaining term of the Contract to maturity and the stated maturity
date:
(12) Whether a prepayment penalty is provided for:
(13) Type of interest in land (fee or leasehold):
(14) Frequency of adjustment of the interest rate (for adjustable rate
Contracts):
(15) First interest rate change date (for adjustable rate Contracts):
(16) Index (for adjustable rate Contracts):
(17) Maximum interest rates and if applicable minimum interest rates (for
adjustable rate Contracts):
(18) Periodic rate cap (for adjustable rate Contracts):
(19) Gross margin (for adjustable rate Contracts):
(20) Loan-to-Value Ratio at origination:
(21) Loan-to-Value Ratio as of the proposed Purchase Date:
(22) Franchise Concept:
(23) That the amount of the title insurance policy equals the original
principal balance of the loan:
D-1
EXHIBIT E
---------
AUTHORIZED OFFICES OF THE BUYER
Name Specimen Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------ --------------------------
▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------ --------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------ --------------------------
E-1
EXHIBIT F
---------
AUTHORIZED OFFICERS OF THE SELLER
Name Specimen Signature
▇▇▇▇ ▇▇▇▇▇▇▇ - Senior V.P. /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ - Senior V.P. /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇ - President /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------- --------------------------------
F-1
EXHIBIT G
---------
AUTHORIZED OFFICERS OF THE SERVICER
Name Specimen Signature
▇▇▇▇ ▇▇▇▇▇▇▇ - Senior V.P. /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ - Senior V.P. /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇ - President /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------- --------------------------------
G-1
EXHIBIT H
---------
AUTHORIZED OFFICERS OF THE CUSTODIAN
Name Specimen Signature
▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Secretary /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Secretary /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------
[SIGNATURE ILLEGIBLE]
Vice President /s/ [SIGNATURE ILLEGIBLE]
---------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
H-1
EXHIBIT I
---------
ESCROW AGREEMENT
I-1
MASTER ESCROW AGREEMENT
This Master Escrow Agreement ("Master Escrow Agreement") is dated as
of _____, 199_, by and among Franchise Mortgage Acceptance Company LLC ("FMAC"),
Credit Suisse First Boston Mortgage Capital LLC (formerly CS First Boston
Mortgage Capital Corp.) ("CSFB"), First Bank National Association, as custodian
(in such capacity, "Custodian") and as wire escrow agent (in such capacity,
"Wire Agent") and ________________________, as document escrow agent ("Document
Agent").
WHEREAS, pursuant to a Master Repurchase Agreement and Annex I,
Additional Supplemental Terms To Master Repurchase Agreement, each dated as of
October 10, 1996, and by and between CSFB and FMAC and each as amended from time
to time (collectively, the "Repurchase Agreement"), FMAC intends to sell and
CSFB intends to purchase certain Contracts (as defined in the Repurchase
Agreement) in accordance with the terms of the Repurchase Agreement.
WHEREAS, CSFB, FMAC and Custodian have entered into a Tri-Party
Custodial Agreement dated as of October 10, 1996, as amended from time to time
(the "Custodial Agreement") for the servicing, custody and management of the
Contracts which become subject to the Repurchase Agreement.
WHEREAS, FMAC intends to make from time to time certain franchise
loans (each, a "Loan") to certain obligors secured by a mortgage on the fee
simple or leasehold interest in the mortgaged property and/or other collateral
securing such Loan with funds advanced from time to time by CSFB pursuant to the
terms of the Repurchase Agreement and the Custodial Agreement.
WHEREAS, FMAC and CSFB each desire to retain the Wire Agent for the
purpose of facilitating the funding of each Loan and holding and disbursing the
Escrow Funds in accordance with the terms and conditions of this Master Escrow
Agreement;
WHEREAS, FMAC desires to retain the Document Agent for the purpose of
facilitating the funding of each Loan and issuing and delivering to Custodian an
Escrow Receipt and holding and delivering to Custodian, the Custodian's Contract
File with respect to each Loan in accordance with the terms of this Master
Escrow Agreement.
WHEREAS, the Wire Agent and the Document Agent each desires to act as
an escrow agent in the capacity as set forth herein and pursuant hereto, subject
to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and received, the
parties hereto each agree as follows;
-2-
ARTICLE I
DEFINITIONS; APPOINTMENT OF DOCUMENT AGENT AND WIRE AGENT; MASTER AGREEMENT
Section 1.1 Definitions. For purposes of this following terms shall
-----------
have the meanings set forth below.
"Business Day" shall mean any day other than (i) a Saturday or a
------------
Sunday or (ii) another day on which banking institutions in the State of New
York are authorized or obligated by law, executive order, or governmental decree
to be closed.
"Closing Documents" shall mean, with respect to each Loan, the
-----------------
documents required by FMAC for the closing of such Loan, including, without
limitation, the documents in the Custodian's Contract File and the documents
listed on the closing index prepared by the attorney responsible for closing the
Loan on behalf of FMAC, which index shall be attached to the related Escrow
Receipt.
"Closing Index" shall mean, with respect to a Loan, the closing
-------------
index prepared by the closing attorney that lists all the documents necessary
and required to close such Loan.
"Custodian's Contract File" shall mean, with respect to each Loan, the
-------------------------
documents specified in Section A of Schedule 1 attached hereto.
"Escrow Funds" shall mean the funds deposited by CSFB with the Wire
------------
Agent for each Table Funding.
"Escrow Receipt" shall have the meaning assigned thereto in Section
--------------
3.3(b).
"Funding" shall mean the release of the Escrow Funds by the Wire
-------
Agent to the Persons specified in the Wire Disbursement and Document Release
Authorization Letter with respect to a Loan.
"Pay-Off Letter" shall mean a letter from a lending institution or
--------------
other creditor of the Obligor having an outstanding loan to the Obligor that
will be paid off with the Escrow Funds, and which letter sets forth the amounts
required to pay-off such loan and to obtain a release of such creditor's lien on
the Obligor's property.
"Table Funding" shall mean, with respect to each Loan, the arrangement
-------------
by which a Loan is financed by FMAC through the Escrow Funds provided by CSFB
directly to the Wire Agent.
"Table Funding Closing Date" shall mean the date on which the Funding
--------------------------
takes place.
-3-
"Table Funding Period" shall mean, with respect to each Table Funding,
--------------------
the period of time from the date CSFB transfers, by wire, to the Wire Agent the
Escrow Funds to and including the date Custodian receives the related
Custodian's Contract File from the Document Agent.
"Settlement Statement" shall mean, with respect to each Loan, the
--------------------
settlement statement prepared by FMAC and executed by the Obligor that sets
forth the allocation of the Loan funds.
"Wire Disbursement and Document Release Authorization Letter" shall
-----------------------------------------------------------
mean the letter, in the form attached hereto as Exhibit A, originated by FMAC
and confirmed in writing by CSFB that (x) authorizes and directs the Wire Agent
to transfer the Escrow Funds to the Person(s) specified therein and (y)
authorizes and directs the Document Agent to release and deliver to Custodian
the Custodian Contract File, in the form attached hereto as Exhibit A.
Section 1.2. Incorporation of Certain Definitions; Times. All
-------------------------------------------
capitalized terms used herein and not otherwise defined shall have the meanings
assigned in the Repurchase Agreement or Custodial Agreement unless the context
clearly indicates otherwise. All times specified herein shall be New York City
time.
Section 1.3. Appointment of the Wire Agent and the Document Agent.
----------------------------------------------------
The Wire Agent is hereby appointed by CSFB and FMAC to act as Wire Agent and the
Document Agent is hereby appointed by FMAC to act as Document Agent, in each
case to facilitate the Table Funding of each Loan under the Repurchase
Agreement, and the Wire Agent and the Document Agent each hereby accepts such
appointment.
Section 1.4. Master Escrow Agreement. The parties hereto agree and
-----------------------
acknowledge (i) that this Master Escrow Agreement (x) sets forth and controls
each of the parties' respective rights, duties, responsibilities and obligations
with respect to each Table Funding and (y) shall continue to be in full force
and effect with respect to each Table Funding to be entered into from time to
time, and (ii) that each shall be bound by the terms of this Master Escrow
Agreement with respect to each Table Funding.
ARTICLE II
DELIVERY OF DOCUMENTS
Section 2.1. Delivery of Wire Disbursement and Document Release
--------------------------------------------------
Authorization Letter. With respect to each Table Funding, FMAC shall deliver to
--------------------
CSFB and Custodian the following, respectively, by facsimile transmission
(unless otherwise indicated herein):
(i) to CSFB the following:
-4-
(a) for receipt by CSFB at least two (2) Business Days
preceding the proposed Table Funding Closing Date, the Transaction
Notice (delivered pursuant to the Repurchase Agreement);
(b) for receipt by CSFB on or before 12:00 p.m. New York
City time on the Business Day preceding the proposed Table Funding
Closing Date, the Pay-Off Letter(s); and
(c) for receipt by CSFB on or before 12:00 p.m. New York
City time on the proposed Table Funding Closing Date specified in such
Transaction Notice (x) the Wire Disbursement and Document Release
Authorization Letter executed by FMAC (original to be sent by
overnight mail for receipt the next day) and (y) the Settlement
Statement; and
(ii) to the Custodian the following:
(a) for receipt by Custodian at least two (2) Business Days
preceding the proposed Table Funding Closing Date, the Transaction
Notice (delivered pursuant to the Repurchase Agreement).
FMAC hereby acknowledges and agrees that in the event CSFB or Custodian do not
receive the foregoing documents, respectively, or the Escrow Receipt by the
applicable times specified above or in Section 3.3(b) hereof, as the case may
be, the proposed Table Funding Closing Date shall be the next Business Day
succeeding the original proposed Table Funding Closing Date.
Section 2.2 Delivery of Closing Documents. FMAC shall deliver or
-----------------------------
cause to be delivered to the Document Agent the Closing Documents with respect
to each Loan subject to a Table Funding.
ARTICLE III
CUSTODY OF CUSTODIAL CONTRACT FILES
Section 3.1. Receipt of Closing Documents. The Document Agent shall
----------------------------
receive from FMAC or the Borrower, as the case may be, the Closing Documents
with respect to each Loan subject of a Table Funding and shall hold and maintain
such Closing Documents for the benefit of FMAC and CSFB in accordance with the
terms hereof until such time as the Custodian's Contract File is delivered to
the Custodian pursuant to Section 3.6 hereof.
Section 3.2. Holding of the Custodian's Contract File.
----------------------------------------
(a) The Document Agent shall segregate and maintain continuous
custody of all Closing Documents, including the documents in the Custodian's
Contract File, received by it in accordance with its customary standards for
such custody.
-5-
(b) Written instructions as to the method of shipment and shipper(s)
the Document Agent is directed to utilize in connection with transmission of the
Custodian's Contract File to Custodian shall be delivered by FMAC to the
Document Agent prior to any shipment of any Custodian's Contract File hereunder
by the Document Agent. In the event the Document Agent does not receive written
instructions as provided for in the preceding sentence, the Document Agent is
hereby authorized and shall be indemnified as provided herein to utilize a
nationally recognized courier service. FMAC will arrange for the provision of
such services at FMAC's sole expense and cost (or at the Document Agent's
option, reimburse the Document Agent for all costs and expenses incurred by the
Document Agent consistent with such instructions) and will maintain insurance
against loss or damage to Custodian's Contract Files as FMAC deems appropriate
and at FMAC's expense.
Section 3.3 Review of Closing Documents and Delivery of Escrow
--------------------------------------------------
Receipt.
-------
(a) The Document Agent shall, prior to issuing an Escrow Receipt
pursuant to Section 3.3(b) below, review each of the Closing Documents with
respect to each Loan and determine whether all such Closing Documents listed on
Schedule 1 (originals or copies as specified therein) are in its possession, and
if any of the Closing Documents are not in its possession, the Document Agent
shall immediately advise CSFB and FMAC which Closing Documents are not in its
possession by sending to CSFB and FMAC by facsimile transmission the Schedule 1
to the related Escrow Receipt with respect to the Loan subject of the Closing
Documents indicating in such Schedule 1 which Closing Documents have and have
not been received by such Document Agent.
(b) After such review of all such Closing Documents, the Document
Agent shall promptly deliver by facsimile transmission to Custodian, CSFB and
FMAC a fully executed escrow receipt (the original of which is to be sent by
overnight mail to Custodian on the same day such escrow receipt is sent by
facsimile transmission) in the form of Exhibit B attached hereto ("Escrow
Receipt") in which the Document Agent shall certify (i) that the required
original or copy of each such Closing Document as specified in Schedule 1
attached to such Escrow Receipt has been received by it, (ii) that each Closing
Document appears to be the applicable closing document for the related Loan and
is signed, and (iii) that all such Closing Documents are in its possession. The
facsimile copy of the Escrow Receipt must be received by the Custodian and CSFB
from the Document Agent on or before 5:00 p.m. New York City time on the
Business Day preceding the proposed Table Funding Closing Date.
Section 3.4. Examination of the Custodian's Contract File.
--------------------------------------------
Upon prior written notice to the Document Agent, FMAC and CSFB and their
respective agents, accountants, attorneys and auditors will be permitted,
during normal business hours, to examine the Custodian's Contract File with
respect to each Loan and, subject to attorney-client privilege, any other
related documents relating to the Loan in the possession of or under the control
of the Document Agent.
Section 3.5. Copies of Documents Contained in the Custodian's
------------------------------------------------
Contract File. Upon written request of FMAC or CSFB and at the sole cost and
-------------
expense of FMAC, the Document Agent shall provide FMAC or CSFB, as applicable,
with copies of the documents that
-6-
are part of the Custodian's Contract File relating to each Loan. At no time
shall be Document Agent release the original of any document in such Custodian's
Contract File unless the Document Agent (i) reasonably determines that such
document is needed for recording or filing by the title insurance company or
FMAC's designated filing/recording entity, as applicable, in the appropriate
filing office under the Uniform Commercial Code and/or recording office of the
jurisdiction where the mortgaged property and other collateral securing the
related Loan is located or (ii) determines that such document is to be delivered
to Custodian in accordance to the terms of this Master Escrow Agreement, or as
otherwise agreed to in writing by CSFB.
Section 3.6. Delivery of Custodian's Contract File to Custodian. The
--------------------------------------------------
Document Agent shall (i) deliver to Custodian all the documents in the
Custodian's Contract File for receipt thereof by Custodian within five (5)
Business Days (or within such longer period of time as mutually agreed to by
FMAC and CSFB, and the Document Agent has received timely notice of such other
period of time) after the date on which the Document Agent receives from CSFB
the Wire Disbursement and Document Release Authorization Letter, and (ii)
deliver the remaining Closing Documents, including, to the extent required by
FMAC, copies of the documents in the Custodian's Contract File, to FMAC, or as
otherwise instructed by FMAC. In the event the Custodian does not receive the
Custodian's Contract File within the time period specified in clause (i) in this
Section 3.6, the Custodian shall promptly send by facsimile transmission written
notice to CSFB indicating that it has not yet received such Custodian's Contract
File.
ARTICLE IV
ESCROW FUNDS
Section 4.1. Establishment of Escrow Funds.
-----------------------------
(a) The Wire Agent, as escrow agent for CSFB, shall hold in a
segregated account, subject to the terms and conditions herein, the Escrow Funds
it receives by wire from CSFB with respect to each Loan. The Account shall be
entitled "First Bank National Association for CS First Boston Mortgage Capital
Corp." The Wire Agent shall, upon receipt of the Escrow Funds, immediately send
by facsimile transmission to CSFB, FMAC and Custodian written confirmation
indicating its receipt of such Escrow Funds.
(b) The Escrow Funds shall be invested and reinvested by the Wire
Agent in such investments as directed in writing by FMAC, provided that such
investments are then generally acceptable to Standard & Poor's Rating Service
("S&P") for reinvestment of funds in transactions rated "AAA" by S&P. No
investment may be sold prior to its maturity. All net income and gain from such
investments shall be released to FMAC as directed in writing by FMAC. Any losses
on investment or reinvestment of the Escrow Funds shall be reimbursed by FMAC
and immediately deposited into the Escrow Account prior to the release of the
Escrow Funds in accordance with the terms of this Master Escrow Agreement.
-7-
(c) Any Escrow Funds to be wired to the Wire Agent by CSFB with
respect to a Table Funding are to be transferred by federal funds wire in
accordance with the following wire instructions:
Bank: First Bank National Association
ABA#: ▇▇▇▇▇▇▇▇▇
Account Name: First Bank for CS First Boston
Mortgage Capital Corp. - Master Escrow
Account #: 180121167365
Reference #: ▇▇-▇▇▇▇▇-▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Section 4.2 Disbursement of Escrow Funds.
----------------------------
(a) The Wire Agent shall not disburse the Escrow Funds with respect
to each Loan unless and until the Wire Agent has received the fully executed and
confirmed telecopy of the Wire Disbursement and Document Release Authorization
Letter from CSFB. The Wire Agent shall disburse the Escrow Funds in accordance
with the instructions set forth in the Wire Disbursement and Document Release
Authorization Letter.
(b) In the event that the Wire Agent receives the Escrow Funds and
the Wire Disbursement and Document Release Authorization Letter from CSFB prior
to 3:00 p.m. New York City time on the proposed Table Funding Closing Date the
Wire Agent shall transfer the Escrow Funds in accordance with the terms of the
Wire Disbursement and Document Release Authorization Letter, subject, however to
the terms set forth in Sections 4.2(c) and (d). Any Escrow Funds received by the
Wire Agent after 3:00 p.m. New York City time shall be promptly returned to
CSFB, subject, however, to the terms set forth in Sections 4.2(c) and (d).
(c) (1) In the event there is an excess of Escrow Funds after
disbursement of the Escrow Funds with respect to each Loan in accordance with
the instructions set forth in the Wire Disbursement and Document Release
Authorization Letter, the Wire Agent shall immediately return such excess via
federal funds wire of immediately available funds to CSFB in accordance with the
wire instructions set forth in Section 4.2(c)(2), subject, however, to the terms
set forth in Section 4.2(d).
(2) In the event (i) that the Funding with respect to each Loan
does not take place prior to 3:00 p.m. New York City time on the same day the
Escrow Agent receives the related Escrow Funds from CSFB, unless otherwise
extended by CSFB by telephone or (ii) that the Wire Agent receives written
instructions from either CSFB or FMAC that the Table Funding with respect to the
related Loan has been cancelled or that one of them has elected not to proceed
with the related Table Funding for any reason and that the related Escrow Funds
are to be returned to CSFB, the Wire Agent shall promptly return such Escrow
Funds via federal funds wire of immediately available funds to CSFB as follows:
-8-
Bank: Citibank NYC
ABA#: ▇▇▇▇▇▇▇▇▇
Account: CS First Boston Corp.
Account#: ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
(d) FMAC agrees that upon receipt of the Escrow Funds by the Wire
Agent, FMAC shall be deemed to have received such Escrow Funds and will be
liable for such Escrow Funds in accordance with the terms of the Repurchase
Agreement. If the Wire Agent returns to CSFB any Escrow Funds pursuant to
Section 4.2(b) or Section 4.2(c), FMAC shall, at the time such Escrow Funds are
returned to CSFB, immediately pay to CSFB the amount equal to the product of (i)
the product of (x) the amount of such Escrow Funds and (y) the Pricing Rate
applied during the Table Funding Period as provided in the Repurchase Agreement
and (ii) a fraction, expressed as a percentage, the numerator of which is the
number of days from the date on which CSFB wires the Escrow Funds to the Wire
Agent to the date on which CSFB receives the Escrow Funds from the Wire Agent
pursuant to this Master Escrow Agreement (calculated by including the date on
which CSFB wires such Escrow Funds but excluding the date on which CSFB receives
the Escrow Funds from the Wire Agent; provided, however, that for purposes of
-------- -------
such calculation, in the event such Escrow Funds are returned to and received by
CSFB on the same day the Escrow Funds are received by the Wire Agent from CSFB,
the Escrow Funds shall be deemed to be received by CSFB on the next day), and
the denominator of which is 360 days. Such payment by FMAC shall be made via
federal funds wire of immediately available funds in accordance with the wire
instructions set forth in Section 4.2(c)(2).
ARTICLE V
CONCERNING THE WIRE AGENT AND THE DOCUMENT AGENT
Section 5.1. Duties of the Wire Agent and the Document Agent. The
-----------------------------------------------
Wire Agent and the Document Agent each shall be obligated to perform only the
applicable duties as are expressly set forth in this Master Escrow Agreement. No
implied covenants or obligations shall be inferred from this Master Escrow
Agreement and the Master Repurchase Agreement against the Wire Agent or the
Document Agent, nor shall the Wire Agent and the Document Agent be bound by the
provisions of any agreement between any parties hereto beyond the specific terms
hereof.
Section 5.2. Indemnification of Wire Agent. FMAC agrees: (i) to
-----------------------------
indemnify the Wire Agent for, and hold the Wire Agent harmless from and against
any loss, liability, claim, expense or damage (including court costs and
attorney's fees) incurred in connection with the performance of the Wire Agent's
duties hereunder, except for any loss, liability, claim, expense or damage
caused by the Wire Agent's bad faith, misconduct or negligence; (ii) the Wire
Agent may, at its own expense, consult with legal counsel in the event of any
dispute or questions as to the construction of any of the provisions hereof or
its duties hereunder, and it shall be fully protected in acting in accordance
with the opinion and instruction of such counsel; and (iii) the Wire Agent shall
not be responsible for any representation made
-9-
or obligations assumed by CSFB, FMAC, Custodian or the Document Agent, and
nothing herein shall be deemed to obligate the Wire Agent to deliver any cash or
wire any funds or release any documents unless the same have first been received
by the Wire Agent pursuant to this Agreement.
Section 5.3. Indemnification of Liability of Document Agent. FMAC
----------------------------------------------
agrees: (i) to indemnify the Document Agent for, and hold the Document Agent
harmless from and against any loss, liability, claim, expense or damage
(including court costs and attorney's fees) incurred in connection with the
performance of the Document Agent's duties hereunder, except for any loss,
liability, claim, expense or damage caused by the Document Agent's bad faith,
misconduct or negligence; (ii) the Document Agent may, at its own expense,
consult with legal counsel in the event of any dispute or questions as to the
construction of any of the provisions hereof or its hereunder, and it shall be
fully protected in acting in accordance with the opinion and instruction of such
counsel; and (iii) the Document Agent shall not be responsible for any
representation made or obligations assumed by CSFB, FMAC, Custodian or the Wire
Agent, and nothing herein shall be deemed to obligate the Document Agent to
release any documents unless the same shall have first been received by the
Document Agent.
Section 5.4. Reliance. The Wire Agent and the Document Agent each
--------
shall be entitled to rely upon any order, judgment, certification, instruction,
notice or other writing delivered to it in compliance with the provisions of
this Master Escrow Agreement without being required to determine the correctness
of any fact stated therein or the propriety or validity or service thereof. The
Wire Agent and the Document Agent each may act in reliance upon any instrument
comporting with the provisions of this Master Escrow Agreement or signature
believed by it to be genuine and may assume that any person purporting to give
notice or make any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
Section 5.5. No Representations. The Wire Agent and the Document
------------------
Agent each makes no representation or warranty as to the validity,
effectiveness, enforceability, sufficiency, value, genuineness or collectability
of any security or other document or instrument held by or delivered to it.
Section 5.6. Wire Agent and Document Agent Fees and Expenses. FMAC
-----------------------------------------------
shall be liable for and pay all expenses and costs incurred by the Wire Agent
and the Document Agent in connection with the Wire Agent's and the Document
Agent's respective activities hereunder, including, but not limited to, fees,
disbursements and reasonable attorney fees.
Section 5.7. No Adverse Interest of the Wire Agent and the Document
------------------------------------------------------
Agent. By execution of this Master Escrow Agreement, the Wire Agent and the
-----
Document Agent each represents, warrants and covenants that it currently does
not hold, and during the existence of this Master Escrow Agreement shall not
hold, any adverse interest or claim, by way of security, lien or otherwise, in
or to any document contained in the Custodian's Contract File or in or to the
Escrow Funds.
-10-
Section 5.8. Replacement of the Wire Agent or the Document Agent.
---------------------------------------------------
CSFB and FMAC shall have the right to designate a new wire agent or document
agent upon delivery to the Wire Agent or the Document Agent, as the case may be,
of written notice of such designation signed by CSFB and FMAC. In the event CSFB
and FMAC agree to designate a new wire agent or document agent, upon such
designation the Wire Agent shall immediately deliver any Escrow Funds and
related documents to the new wire agent or the Document Agent shall immediately
deliver any Closing Documents and related documents to the new document agent to
be held in escrow by such new Wire Agent or Document Agent, as the case may be.
Section 5.9. Resignation of Document Agent. The Document Agent may
-----------------------------
resign and be discharged from its duties or obligations hereunder by giving
notice in writing specifying a date when such resignation shall take effect,
which date shall not be less than thirty (30) days after such notice is given;
provided, that (i) the Document Agent shall continue to perform its duties until
--------
a successor document agent has been designated by CSFB and FMAC and (ii)
Document Agent shall continue to comply with reasonable requests for documents
and information in Document Agent's files with respect to any Loan for which
Document Agent acted as document agent under this Master Escrow Agreement.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1. Termination. At such time as when the Repurchase
-----------
Agreement terminates pursuant to the terms therein, this Master Escrow Agreement
shall terminate and the Wire Agent and the Document Agent shall be discharged
from all obligations under this Master Escrow Agreement and shall have no
further duties or responsibilities in connection herewith.
-11-
ARTICLE VII
MISCELLANEOUS
7.1 Authorized Representatives. Each individual designated as an
--------------------------
authorized representative of CSFB, FMAC, Custodian, Wire Agent and Document
Agent, respectively (an "Authorized Representative"), is authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Master Escrow Agreement on behalf of CSFB,
FMAC, Custodian, Wire Agent and Document Agent, as the case may be, and the
specimen signature for each such Authorized Representative of CSFB, each such
Authorized Representative of FMAC, each such Authorized Representative of the
Custodian, each such Authorized Representative of the Wire Agent, and each such
Authorized Representative of the Document Agent, initially authorized hereunder,
is set forth on Exhibits C, D, E, F and G hereof, respectively. From time to
time, CSFB, FMAC, Custodian, Wire Agent and Document Agent may, by delivering to
each other a revised exhibit, change the information previously given pursuant
to this Section 7.1, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding exhibit.
7.2. Notices. Any notice or other writing given by any party
-------
hereto to any other party relating to the subject matter of these instructions
shall at the same time be delivered to every other party hereto. All notices,
requests and other communications hereunder shall be in writing and shall be
delivered by facsimile or by reputable overnight courier addressed as follows:
If to First Boston: Credit Suisse First Boston Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to FMAC: Franchise Mortgage Acceptance Company LLC
Five ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Custodian: First Bank National Association
c/o First Trust
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: DCS-▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
If to Wire Agent: First Bank National Association
c/o First Trust
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, A.V.P.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile:(▇▇▇) ▇▇▇-▇▇▇▇
If to Document Agent: _________________________
Attention:
Telephone:
Telefacsimile:
All such notices, requests or communications shall be deemed to have
been duly given when received by the other party or parties, as the case may be.
Either party may from time to time change the addresses to which notices to it
are to be delivered or marked under this Master Escrow Agreement by notice in
writing to the other party.
Section 7.3. Governing Law. This Master Escrow Agreement shall be
-------------
governed by and construed in accordance with the laws of the State of New York
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws without giving effect to the conflict of
law rules thereof.
Section 7.4. Counterparts. This Master Escrow Agreement may be
------------
executed in one or more counterparts, each of which counterparts shall be deemed
to be an original, and all of such counterparts taken together shall constitute
but one and the same instrument.
Section 7.5. Amendment. This Master Escrow Agreement may not be
---------
amended nor may any provision hereof be waived or modified without the written
consent of all parties hereof.
Section 7.6. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Master Escrow Agreement shall
be for any reason whatsoever held invalid, the invalidity of any such covenant,
agreement, provision or term of this Master Escrow Agreement shall in no way
affect the validity or enforceability of the other provisions of this Master
Escrow Agreement.
Section 7.7. Successors. This Master Escrow Agreement shall bind and
----------
inure to the benefit of and be enforceable by the parties hereto and their
respective successors.
IN WITNESS WHEREOF, the parties hereto have signed this Master Escrow
Agreement on the date first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
By:_________________________________________
Name:
Title:
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC
By:_________________________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION, in its capacity
as Custodian
By:_________________________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION, in its capacity
as Wire Agent
By:_________________________________________
Name:
Title:
_____________________, as Document Agent
By:_________________________________________
Name:
Title:
EXHIBIT A
WIRE DISBURSEMENT AND
DOCUMENT RELEASE AUTHORIZATION LETTER
First Bank National Association, as Wire Agent
Structured Finance
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Vice President
[Law Firm], as Document Agent
[Address]
Re: The loan to ________________("Loan") and the Master Escrow Agreement
dated as of ______, 199_ ("Escrow Agreement") by and between Franchise
Mortgage Acceptance Company LLC ("FMAC"), Credit Suisse First Boston
Mortgage Capital LLC (formerly CS First Boston Mortgage Capital Corp.)
("CSFB"), First Bank National Association, as custodian (in such
capacity, "Custodian") and as wire escrow agent (in such capacity,
"Wire Agent") and _______________________, as document escrow agent
("Document Agent").
Ladies and Gentlemen:
This Wire Disbursement and Document Release Authorization Letter
("Authorization Letter") is delivered to you in connection with the above-
referenced Loan and the Escrow Agreement.
A. Wire Disbursement Authorization To Wire Agent
---------------------------------------------
FMAC hereby authorizes and directs the Wire Agent to transfer the
Escrow Funds in the amount of $___________________ held by it pursuant
to the terms of the Escrow Agreement as follows:
1. Name of Creditor $______________
Address
Account No.
ABA No.
File No.
Bank Contact:
2. Name of Creditor $______________
Address
Account No.
ABA No.
File No.
Bank Contact:
3. Name of Creditor $______________
Address
Account No.
ABA No.
File No.
Bank Contact:
4. Name of Creditor $______________
Address
Account No.
ABA No.
File No.
Bank Contact:
B. Release of Custodian's Contract File.
------------------------------------
FMAC hereby authorizes and directs the Document Agent to release
and deliver the Custodian's Contract Files with respect to the Loan to
Custodian in accordance with the term of the Escrow Agreement to the
following address:
[CUSTODIAN TO PROVIDE ADDRESS]
C. Disbursements Information:
[TO BE PROVIDED BY FMAC]
The Wire Agent shall not transfer such Escrow Funds and the Document
Agent shall not release the Custodian Contract Files unless and until the Wire
Agent and the Document Agent each receives from CSFB, by facsimile transmission,
a copy of this letter executed by FMAC and confirmed and acknowledged by CSFB in
writing in the space provided below. In the event that either of you receive
contrary written instructions from CSFB, you are to follow such instructions and
disregard the instructions set forth in this Letter.
Very truly yours,
FRANCHISE MORTGAGE ACCEPTANCE
COMPANY LLC
By:__________________________________
Name:
Title:
Acknowledged and Confirmed By:
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC:
By:____________________________
Name:
Title:
EXHIBIT B
ESCROW RECEIPT
First Bank National Association, as Custodian
Structured Finance
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Vice President
Re: Credit Suisse First Boston Mortgage Capital LLC and
Franchise Mortgage Acceptance Company LLC
---------------------------------------------------
Date_______________:
Reference is made to the following:
1. Master Escrow Agreement dated as of _____, 199_ ("Escrow
Agreement") by and among Franchise Mortgage Acceptance Company
LLC ("FMAC"). Credit Suisse First Boston Mortgage Capital LLC
(formerly CS First Boston Mortgage Capital Corp) ("CSFB"), First
Bank National Association, as custodian (in such capacity,
"Custodian") and as Wire Escrow Agent (in such capacity, "Wire
Agent") and __________________, as document agent ("Document
Agent"):
2. Master Repurchase Agreement dated as of October 10, 1996 and
Annex I. Additional Supplemental Term To Master Repurchase
Agreement dated as of October 10, 1996, each by and among FMAC
and CSFB (collectively, the Repurchase Agreement"): and
3. The Tri-Party Custodial Agreement dated as of October 10, 1996 by
and among CSFB, FMAC and Custodian, as amended, supplemented or
otherwise modified from time to time ("Custodial Agreement").
The Master Escrow Agreement and the Repurchase Agreement and the
Custodial Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein shall have the respective meanings assigned
in the Agreements, as applicable.
In connection with that certain loan ("Loan") made by FMAC to [Name of
Obligor] ("Obligor"), the undersigned hereby states:
(i) that it has received the required original or copy of each
of the Closing Documents, including the Custodian Contract File,
specified in Schedule 1 attached hereto in respect of such Loan;
(ii) that each Closing Document, including each document in the
Custodian Contract File, appears to be the applicable closing document
for the related Loan and is signed; and
(iii) that, except as otherwise expressly provided herein, it
has physical possession of such Closing Documents, including the
Custodian Contract File, and will continue to hold all such Closing
Documents, including the Custodian Contract File, for the benefit of
FMAC and CSFB and will deliver the Custodian's Contract File to
Custodian in accordance with the terms of the Escrow Agreement.
We acknowledge that FMAC has granted a security interest to CSFB in
the Loan.
Very truly yours,
[DOCUMENT AGENT]
By:______________________________
Name:
Title:
The foregoing is hereby accepted and agreed to by FMAC, and FMAC
hereby represents and warrants to CSFB and the Custodian that:
(1) the UCC-1 financing statement granting CSFB a first priority
security interest in the Loan and required pursuant to the Repurchase
Agreement and the Custodial Agreement has been filed by FMAC with the
Secretary of State of California and the Secretary of State of Connecticut
and remains in full force and effect.
(2) The UCC-1 financing statements with respect to the related
Obligor and any other documents to be recorded or filed with the
appropriate filing or recording office (including any leasehold mortgage,
in the case where title insurance is not being obtained), except for
mortgages to be recorded by the title insurance company, will be submitted
by FMAC to its designated recording/filing entity within twenty-four (24)
hours following the disbursement of the Escrow Funds by the Wire Agent in
accordance with the Wire Disbursement and Document Release Authorization
Letter for filing in the appropriate office(s) under the Uniform Commercial
Code and governmental recording office(s) of the jurisdiction(s) where the
Collateral is located.
(3) In the event title insurance is being obtained, the related
original Mortgage on the fee interest or the leasehold interest in the
related Mortgaged Property will be forwarded to the title company within
twenty-four (24) hours after the disbursement of the Escrow Funds by the
Wire Agent in accordance with the Wire Disbursement and Document Release
Authorization Letter for recording in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is
located.
(4) The original title policy shall be delivered to the Custodian by
FMAC within sixty (60) days after delivery of all of the other documents in
the Custodian's Contract File to the Custodian, or such other period of
time as agreed to by CSFB.
(5) If applicable, an original memorandum of ground lease and
original power of attorney shall be submitted to the title insurance
company or FMAC's designated recording/filing entity, as applicable, within
twenty-four (24) hours after the disbursement and Document Release
Authorization Letter for recording in the appropriate filing office under
the Uniform Commercial Code or the appropriate recording office of the
jurisdiction where the related Collateral is located.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC
By:______________________________
Name:
Title:
SCHEDULE 1
----------
CLOSING DOCUMENTS FOR FMAC FRANCHISE LOANS
Closing Checklist
Section A. CUSTODIAN'S CONTRACT FILE.
-------------------------
1. a copy of the credit application of the Obligor;
2. the original promissory note endorsed by FMAC, without recourse,
in blank;
3. a) in the event title insurance is being obtained, the original
Mortgage (fee or leasehold, as applicable), naming FMAC as
the "mortgagee" thereof, and bearing on the face thereof the
address of FMAC and bearing evidence that such instrument
will be submitted to the title company for recording in the
appropriate recording office of the jurisdiction where the
Mortgaged Property is located (or, in lieu of the original
of the Mortgage, a duplicate or conformed copy of the
Mortgage, together with a certificate from FMAC certifying
that such copy or copies represent true and correct
copy(ies) of the original(s) and that such original(s) will
be submitted to the title company for recording in the
appropriate recording office of the jurisdiction where the
related Mortgaged Property is located) or a certification or
receipt of the recording authority evidencing the same; or
b) in the event title insurance is not being obtained, the
original leasehold Mortgage naming FMAC as the "mortgagee"
thereof, and bearing on the face thereof the address of FMAC
and bearing evidence that such leasehold Mortgage will be
submitted to FMAC for recording by FMAC's designated
recording/filing entity in the appropriate recording office
of the jurisdiction where the related Mortgaged Property is
located (or, in lieu of such original, a duplicate or
conformed copy of such leasehold Mortgage, together with a
certificate from FMAC certifying that such copy or copies
represent true and correct cop(ies) of the original(s) and
that such original(s) will be submitted to FMAC for
recording by FMAC's designated recording/filing entity in
the appropriate recording office of the jurisdiction where
the related Mortgaged Property is located;
4. the original Security Agreement naming FMAC as the "secured party"
thereof, and bearing on the face thereof the address of FMAC, and
the copies of the UCC-1 financing statements related to such
Security Agreement bearing evidence that such financing statements
will be submitted to FMAC for filing and/or recording by FMAC's
designated recording/filing entity in the appropriate filing
office under the Uniform Commercial Code and/or the appropriate
recording office of the jurisdiction where the Collateral is
located, (or, in lieu of such evidence, a certificate from FMAC
certifying that such copy or copies represent true and correct
copy(ies) of the original(s) and that such original(s) will be
-2-
submitted to FMAC for filing and/or recording by FMAC's designated
recording/filing entity in the appropriate filing office under the
Uniform Commercial Code and/or the appropriate recording office of
the jurisdiction where the Collateral is located) or a
certification or receipt of the filing and/or recording authority
evidencing the same;
5. an original Assignment of Mortgage (fee or leasehold, as
applicable), in blank, which assignment appears to be in form and
substance acceptable for recording;
6. an original Assignment of Security Agreement, in blank;
7. the originals of any guaranty agreement, if applicable;
8. with respect to each Loan, other than Loans with respect to which
the related Mortgage secures the Obligor's leasehold interest in
the related Mortgaged Property and will not be insured by a title
insurance company, the original or faxed written commitment or
interim binder issued by the title insurance company evidencing
that the required title insurance coverage will be in effect as of
the Table Funding Closing Date and certifying to the holder of the
Loan that the lender's title insurance policy will be issued with
an effective date as of the date of recordation of the Mortgage or
otherwise endorsed to insure against loss of priority to
encumbrances or liens attaching prior to recordation of the
Mortgage;
9. if the Note or other related Loan Documents or any other document
or instrument relating to the Loan has been signed by a person on
behalf of the Obligor, the original power of attorney (or such
other similar instrument that is required by the applicable
recording or filing office to be filed or recorded) that
authorized and empowered such person to sign bearing evidence that
such instrument will, if so required, be submitted to FMAC or the
title insurance company, as applicable, for filing or recording by
FMAC's designated recording/filing entity or the title insurance
company, as applicable, in the appropriate filing office under the
Uniform Commercial Code and/or the appropriate recording office of
the jurisdiction where the related Collateral is located (or, in
lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate from FMAC certifying that such copy
represents a true and complete copy of the original and that such
original will be submitted to FMAC or the title insurance company,
as applicable, for filing or recording by FMAC's designated
recording/filing entity or the title insurance company, as
applicable, in the appropriate filing office under the Uniform
Commercial Code and/or the appropriate recording office of the
jurisdiction where the Collateral is located), or a certification
or receipt of the filing or recording authority evidencing the
same;
10. to the extent that a Subordination of Lessor's lien agreement or
similar subordination agreement is a required Closing Document,
the original of such
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Subordination of Lessor's lien agreement or similar subordination
agreement with evidence that such agreement has been submitted to
FMAC or the title insurance company, as applicable, for recording
by FMAC's designated recording/filing entity or the title
insurance company, as applicable, in the appropriate recording
office of the jurisdiction where the related Mortgage Property is
located (or, in lieu of the original of any such agreement, a
duplicate or conformed copy of such agreement together with a
certificate from FMAC certifying that such copy or copies
represent the true and correct cop(ies) of the original(s) and
that such original(s) have been or are currently submitted to
FMAC or the title insurance company, as applicable, for recording
by FMAC's designated recording/filing entity or the title
insurance company, as applicable, in the appropriate recording
office of the jurisdiction where the Mortgaged Property is
located) or a certification or receipt of the recording authority
evidencing the same;
11. if applicable, a copy of a ground lease and an original
memorandum of such ground lease, with evidence that such
memorandum will be submitted to the title insurance company or
FMAC, as applicable, for recording by the title insurance company
or FMAC's designated recording/filing entity, as applicable, in
the appropriate recording office of the jurisdiction where the
related Mortgaged Property is located (or, in lieu of such
original, a duplicate conformed copy of such original, together
with a certificate from FMAC certifying that such copy represents
a true and accurate copy of the original and that such original
will be submitted to the title company or FMAC, as applicable,
for recording by the title insurance company or FMAC's designated
recording/filing entity, as applicable, in the appropriate
recording office of the jurisdiction where the related Mortgaged
Property is located;
12. a copy of the related Franchise Agreement; and
13. other such documents as CSFB may require after written notice to
FMAC and the Document Agent.
Section B. OTHER CLOSING DOCUMENTS.
-----------------------
To the extent indicated on the Closing Index, all other Closing
Documents listed thereon with respect to the Loan subject of such Closing
Documents and which Closing Index is attached hereto and made a part hereof.
EXHIBIT C
AUTHORIZED REPRESENTATIVES
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
With respect to wires only:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇ ___________________________________
With Respect to any matters other than wires:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ___________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ___________________________________
EXHIBIT D
AUTHORIZED REPRESENTATIVES
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC
NAMES SIGNATURES
________________________________ _______________________________
________________________________ _______________________________
________________________________ _______________________________
EXHIBIT E
AUTHORIZED REPRESENTATIVES
FIRST BANK NATIONAL ASSOCIATION, as Custodian
NAMES SIGNATURES
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
EXHIBIT F
AUTHORIZED REPRESENTATIVES
FIRST BANK NATIONAL ASSOCIATION, as Wire Agent
NAMES SIGNATURES
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
EXHIBIT G
AUTHORIZED REPRESENTATIVES
_______________________________, as Document Agent
NAMES SIGNATURES
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________