EXECUTION COPY
CUSTODIAL AGREEMENT
AMONG
EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC
EQUICREDIT CORPORATION/ALA. & MISS.
ORIGINATORS
EQUICREDIT CORPORATION OF AMERICA
REPRESENTATIVE AND SERVICER
EQCC RECEIVABLES CORPORATION
EQCC ASSET BACKED CORPORATION
DEPOSITORS
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
AND
BANKBOSTON, N.A.
CUSTODIAN
DATED AS OF SEPTEMBER 1, 1997
EQCC HOME EQUITY LOAN TRUST 1997-3
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.............................................................................. 2
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.1. Appointment as Custodian................................................................. 2
Section 2.2. Maintenance of Office.................................................................... 2
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. Transfer of Mortgage Loans; Delivery of
Documents..................................................................................... 3
Section 3.2. Trust Receipt and Certification.......................................................... 4
Section 3.3. Release of Mortgage Files................................................................ 5
Section 3.4. Purchase; Payment In Full................................................................ 5
Section 3.5. Other Duties of Custodian................................................................ 5
Section 3.6. Access to Records........................................................................ 6
Section 3.7. Instructions; Authority to Act........................................................... 6
ARTICLE IV
OWNERSHIP AND TRANSFER OF MORTGAGE LOANS
Section 4.1. Transfer of Mortgage Loans............................................................... 6
Section 4.2. Substitution and Purchase of Mortgage
Loans......................................................................................... 7
Section 4.3. No Service Charge for Transfer of
Mortgage Loans................................................................................ 7
Section 4.4. Defeasance............................................................................... 7
ARTICLE V
CUSTODIAN
Section 5.1. Representations, Warranties and Covenants
of Custodian.................................................................................. 8
Section 5.2. Charges and Expenses..................................................................... 9
Section 5.3. No Adverse Interests..................................................................... 10
Section 5.4. Inspections.............................................................................. 10
Section 5.5. Insurance................................................................................ 10
Section 5.6. Limitation of Liability.................................................................. 10
Section 5.7. Indemnification.......................................................................... 11
Section 5.8. Further Rights of Custodian.............................................................. 11
ARTICLE VI
Page
MISCELLANEOUS PROVISIONS
Section 6.1. Amendment................................................................................ 12
Section 6.2. Governing Law............................................................................ 12
Section 6.3. Notices.................................................................................. 12
Section 6.4. Severability of Provisions............................................................... 12
Section 6.5. No Partnership........................................................................... 13
Section 6.6. Termination of Agreement................................................................. 13
Section 6.7. Counterparts............................................................................. 13
Section 6.8. Assignment............................................................................... 13
Section 6.9. Headings................................................................................. 13
Section 6.10. Advice of Counsel....................................................................... 13
Section 6.11. Third Party Beneficiary................................................................. 13
Section 6.12. Resignation of Custodian................................................................ 13
Section 6.13. Limitation of Liability of Trustee...................................................... 14
EXHIBIT A Trust Receipt and Certification..................................................... A-1
EXHIBIT B Request for Release of Documents.................................................... B-1
EXHIBIT C List of Originators..................................................................C-1
EXHIBIT D Transfer Certificate.................................................................D-1
SCHEDULE I Mortgage Loan Schedule
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of September 1, 1997, by
and among THE ORIGINATORS LISTED ON EXHIBIT C HERETO (collectively, the
"Originators"), EQUICREDIT CORPORATION OF AMERICA, as Representative (the
"Representative") and as Servicer (the "Servicer"), EQCC RECEIVABLES CORPORATION
and EQCC ASSET BACKED CORPORATION (collectively, the "Depositors"), U.S. BANK
NATIONAL ASSOCIATION, as Trustee under the Pooling and Servicing Agreement (the
"Trustee") and BANKBOSTON, N.A., as Custodian (the "Custodian").
RECITALS
WHEREAS, the Originators collectively are the owners of the
Mortgage Loans.
WHEREAS, pursuant to the Transfer Agreement, each Originator
will transfer its related Mortgage Loans to one of the Depositors.
WHEREAS, pursuant to the Pooling and Servicing Agreement, each
Depositor will transfer its related Mortgage Loans acquired pursuant to the
Transfer Agreement to the Trustee for the benefit of the Certificateholders.
WHEREAS, during such time as the Depositors or the Trustee
holds the Mortgage Loans, such Person or Persons shall be referred to herein as
the "Mortgage Holder," and the Custodian shall hold all Mortgage Loans as bailee
of and agent for the benefit of each Depositor and the Trustee (for the benefit
of the Certificateholders) during such time as such Person is a Mortgage Holder.
References in this Agreement to the Mortgage Holder, when referring to transfers
or possession of, or security interests in, Mortgage Loans, shall refer to
Custodian, in its capacity as custodian for the benefit of such Mortgage Holder.
WHEREAS, in connection with the foregoing, the parties hereto
desire to provide for the custody and management of the Mortgage Loans which
become subject to these transfers of Mortgage Loans (each, a "Transfer").
WHEREAS, Custodian is a financial institution regulated by the
Comptroller of the Currency of the United States.
WHEREAS, each Originator, each Depositor and the Trustee
during such time as such Person is a Mortgage Holder desires to have Custodian
(i) hold title to the Mortgage Loans as custodian for each such party, (ii) take
possession of the Mortgage Notes and the Mortgages related to the Mortgage
Loans, along with certain other documents specified in this Agreement (the
"Collateral"), as the custodian for, and bailee of, such Mortgage Holder in
accordance with the terms and conditions of this Agreement, and (iii) endorse
the Mortgage Notes to the order
of the Trustee and retain possession of the Mortgage Notes and Mortgages and
such other documents as custodian for and bailee of the Trustee. Custodian is
willing and able to perform the duties and obligations of a custodian and bailee
as set forth herein.
WHEREAS, Servicer will act as servicer of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the Originators, the Representative,
the Servicer, the Depositors, the Trustee and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Certain capitalized terms used in
this Agreement and not otherwise defined herein shall have the respective
meanings assigned them in Article I of the Pooling and Servicing Agreement dated
as of September 1, 1997 (the "Pooling and Servicing Agreement") among the
Depositors and the Servicer. All references in this Agreement to Articles,
Sections, Subsections and Exhibits are to the same contained in or attached to
this Agreement unless otherwise specified. All terms defined in this Agreement
shall have the defined meanings when used in any certificate, notice or other
document made or delivered pursuant hereto unless otherwise defined therein.
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.1. Appointment as Custodian. Subject to the terms
and conditions hereof, the Depositors and the Trustee (for the benefit of the
Certificateholders), as their interests may appear, hereby appoint BankBoston,
N.A., and BankBoston, N.A., hereby accepts such appointment, as Custodian to
maintain custody of the Mortgage Files during such time as each such Person is a
Mortgage Holder. The Servicer shall be liable for all of the Custodian's fees
and expenses under this Agreement.
Section 2.2. Maintenance of Office. The Custodian agrees to
maintain each Mortgage File identified in Section 2.04 of the Pooling and
Servicing Agreement and Section 2.04 of the Transfer Agreement (a) initially at
its office located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and (b)
then at such of its other offices in Florida or Massachusetts as Custodian shall
designate from time to time after giving the Originators, the Depositors, the
Trustee and the Certificate Insurer 30 days prior written notice.
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. Transfer of Mortgage Loans; Delivery of
Documents. Before a mortgage loan shall become a Mortgage Loan subject to this
Agreement, the Originators shall deliver, or cause to be delivered, to
Custodian, the Mortgage File for such Mortgage Loan referred to in Section 2.04
of the Transfer Agreement. Until the Closing Date and the occurrence of the
applicable initial Transfer described below, the Custodian shall hold the
Mortgage Loans (including the Mortgage Files) as custodian and bailee for the
Originators.
On the Closing Date, the Originators shall deliver to the
Custodian a Transfer Certificate in the form attached hereto as Exhibit D
evidencing the Transfer by the Originators to the Depositors of the Mortgage
Loans pursuant to the Transfer Agreement. Upon receipt of any such Transfer
Certificate duly executed by the Originators, the Custodian shall issue to the
Depositors a Trust Receipt and Certification (the "Depositors' Trust Receipt"),
as described in Section 3.2 below.
On the Closing Date, upon receipt of the Depositors' Trust
Receipt, the Depositors shall deliver to the Custodian a Transfer Certificate in
the form attached hereto as Exhibit D evidencing the Transfer by the Depositors
to the Trustee (for the benefit of the Certificateholders) of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement, together with the Depositor's
Trust Receipt. Upon receipt of a Transfer Certificate duly executed by the
Depositors and the Depositor's Trust Receipt, the Custodian shall issue to the
Trustee a Trust Receipt and Certification (the "Trustee's Trust Receipt"), as
described in Section 3.2 below, and shall cancel the Depositor's Trust Receipt.
Promptly after delivery of the Trustee's Trust Receipt, the Custodian shall
endorse the related Mortgage Notes to the Trustee in the form specified in the
Pooling and Servicing Agreement. Promptly upon the occurrence of the Recordation
Trigger, the Custodian shall forward the Assignments of Mortgage and
Reassignments of Assignments of Beneficial Interest to the Servicer, whereupon,
the Servicer shall (a) cause the Assignments of Mortgage and Reassignments of
Assignments of Beneficial Interest to be recorded in the name of the Trustee
(for the benefit of the Certificateholders) in accordance with Section 2.04 of
the Pooling and Servicing Agreement and (b) return the acknowledgment copies of
such Assignments of Mortgage and Reassignments of Assignments of Beneficial
Interest to the Custodian immediately upon the Servicer's receipt thereof.
Custodian hereby acknowledges receipt of the Transfer
Agreement and the Pooling and Servicing Agreement. Custodian further
acknowledges that, on the Closing Date and pursuant to this Agreement, the
Transfer Agreement and the Pooling and Servicing Agreement, Custodian will be
given possession of the Mortgage Files relating to the Mortgage Loans, each of
which Mortgage Loans will be described specifically on the Mortgage Loan
Schedule, a copy of which will be delivered to Custodian
simultaneously with the delivery of the Mortgage Files relating thereto. On and
after the Closing Date and the completion of the Transfers described above, and
so long as this Agreement shall remain in effect, Custodian shall hold the
Mortgage Loans and other Collateral now and hereafter, from time to time, in its
custody or control as custodian for and bailee of the Trustee, as trustee for
the benefit of the Certificateholders, unless and until released in accordance
with the Pooling and Servicing Agreement, in which event, Custodian shall hold
the Mortgage Files relating to the Mortgage Loans and other Collateral as agent,
trustee and bailee for the benefit of the applicable Mortgage Holder.
Section 3.2. Trust Receipt and Certification. Upon delivery to
Custodian of the Mortgage Files, as specified in Section 3.1, Custodian shall
review the same on account of the Depositors and the Trustee in accordance with
the terms of Section 2.05(a) of the Transfer Agreement and Section 2.06(a) of
the Pooling and Servicing Agreement and (subject to Section 4.1 hereof) shall
provide to the Originators, the Depositors and the Trustee, as the case may be,
with a copy to the Certificate Insurer, a receipt indicating that (i) all the
documents in the Mortgage Files required to be delivered under Section 3.1
(being the documents described in Section 2.04 of the Transfer Agreement, and
Section 2.04 of the Pooling and Servicing Agreement) have been delivered
(subject to any exceptions noted in the related exception report referred to in
such receipt) and (ii) Custodian holds such documents on behalf of the
applicable Mortgage Holder pursuant to this Agreement (the "Mortgage Receipt").
Upon consummation of a Transfer in accordance with Article IV hereof, Custodian
shall, with respect to the Mortgage Loans transferred to the applicable Mortgage
Holder in connection with the applicable Transfer, as described in Section 3.1
hereof, number, execute and deliver to the applicable Mortgage Holder (with a
copy to the Originators and the Certificate Insurer) one or more certifications
(each, a "Trust Receipt and Certification") in the form attached hereto as
Exhibit A. Upon issuance of a Trust Receipt and Certification with respect to
any Transfer, the Mortgage Receipt relating to such Mortgage Loans previously
delivered shall be deemed cancelled with respect to such Mortgage Loans.
If recordation of any Assignment of Mortgage or Reassignment
of Assignment of Beneficial Interest is required after the occurrence of a
Recordation Trigger, upon delivery of such Assignment of Mortgage or
Reassignment of Assignment of Beneficial Interest to the Custodian as set forth
in Section 2.06(d) of the Pooling and Servicing Agreement, the Custodian shall
review the Assignment of Mortgage or Reassignment of Assignment of Beneficial
Interest to confirm the information set forth therein, shall notify the Trustee
of any defect therein and shall otherwise take such actions as may be required
under Section 2.06(d).
Section 3.3. Release of Mortgage Files. From time to
time and as provided in the Pooling and Servicing Agreement,
Custodian is hereby authorized, upon written request of Servicer
in the form annexed hereto as Exhibit B, to release to Servicer the Mortgage
File related to any Mortgage Loan or the specific documents identified in such
request to Servicer. All documents so released to Servicer shall be held by it
in trust for the benefit of the Trustee (for the benefit of the
Certificateholders). Servicer shall return the Mortgage File, or such other
documents which have been released to Servicer, to Custodian when Servicer's
need therefor in connection with such foreclosure or repossession no longer
exists, unless the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certification to this effect from Servicer to Custodian in the form
annexed hereto as Exhibit B, the related Mortgage File shall be released by
Custodian to Servicer, and Custodian shall thereupon reflect any such
liquidation on the related Mortgage.
Section 3.4. Purchase; Payment In Full. Upon the purchase or
substitution of any Mortgage Loan pursuant to Section 2.06 or 3.03 of the
Pooling and Servicing Agreement or Section 2.06 or 3.03 of the Transfer
Agreement, or upon the payment in full of any Mortgage Loan, which shall be
evidenced by Custodian's receipt of the request for release in the form annexed
hereto as Exhibit B, Custodian shall promptly release the related Mortgage File
to Servicer and the interest in such Mortgage Loan and related Mortgage File
granted by the Depositors to the Trustee pursuant to the Pooling and Servicing
Agreement shall terminate without any further action by the Custodian, the
Originators, the Depositors or Trustee.
Section 3.5. Other Duties of Custodian. The Custodian
shall have and perform the other following powers and duties:
(a) Safekeeping. To segregate the Mortgage Files from all
other mortgages and mortgage notes and similar documents in its
possession, to identify the Mortgage Files as being held and to hold
the Mortgage Files for and on behalf of the Mortgage Holders (which, on
and after the Closing Date, and after completion of the Transfers
described in Section 3.1, shall be the Trustee for the benefit of the
Certificateholders), to maintain accurate records pertaining to each
Mortgage Note and Mortgage in the Mortgage Files, to provide monthly a
list of all Mortgage Loan Files held by it, together with a current
exception report, and to provide such information as is necessary to
enable the Trustee to deliver the reports and notifications required by
Section 2.06 of the Pooling and Servicing Agreement. Custodian will
promptly report to the Trustee any failure on its part to hold the
Mortgage Files as herein provided and promptly take appropriate action
to remedy any such failure.
(b) Administration; Reports. In general, to attend to all
non-discretionary details in connection with maintaining custody of the
Mortgage Files on behalf of the Mortgage Holders as may be expressly
provided herein or as may be required or customary for a custodian or
bailee pursuant to FNMA guidelines. In addition, Custodian shall assist
the Trustee and the Servicer (at Servicer's cost) generally in the
preparation of reports to holders or to regulatory bodies to the extent
necessitated by Custodian's custody of the Mortgage Files.
Section 3.6. Access to Records. Custodian shall permit the
Trustee, the Certificate Insurer and their respective duly authorized agents,
attorneys or auditors and those Persons permitted access pursuant to Section
5.12 of the Pooling and Servicing Agreement to inspect the Mortgage Files and
the books and records maintained by the Custodian pursuant hereto at such
reasonable times as they may reasonably request, subject only to compliance with
the terms of the Pooling and Servicing Agreement.
Section 3.7. Instructions; Authority to Act. The
Custodian shall be deemed to have received proper instructions
with respect to the Mortgage Files upon its receipt of written
instructions signed by a Responsible Officer of the Trustee and
may conclusively rely on such instructions. In addition, the
Custodian may conclusively rely upon any release request
delivered to it in the form attached as Exhibit B hereto duly
executed by the Servicer, such release form being agreed to
constitute certification to the Custodian (upon which Custodian
may rely) that all conditions precedent to the release of the
Mortgage File have been met.
ARTICLE IV
OWNERSHIP AND TRANSFER OF MORTGAGE LOANS
Section 4.1. Transfer of Mortgage Loans. The transfer
of Mortgage Loans in connection with any Transfer shall occur in
the following manner:
(i) Custodian shall, promptly upon receiving a
Transfer Certificate relating to the transfer of Mortgage Loans
pursuant to a Transfer:
(a) Determine whether each document in the
Mortgage File listed in Section 2.04 of the Transfer Agreement
and Section 2.04 of the Pooling and Servicing Agreement with
respect to each Mortgage Loan listed on the Mortgage Loan
Schedule has been delivered to Custodian, and whether
Custodian is able to deliver a Trust Receipt and
Certification;
(b) promptly advise the applicable Mortgage
Holder, the Certificate Insurer, the Trustee, the applicable
Originator and the applicable Depositor by telephone or by
facsimile transmission if it determines that any document
referred to in (a) above has not been so delivered and take no
further action under this Section 4.1 until it determines that
such documents have been so delivered;
(c) upon determining that such documents
have been so delivered, Custodian shall issue and deliver to
applicable Mortgage Holder the Trust Receipt and Certification
in accordance with Sections 3.1 and 3.2 of this Agreement; and
(ii) Custodian shall hold the Mortgage Files for
each Mortgage Holder subject to satisfaction of the conditions
precedent with respect to the applicable Transfer.
Section 4.2. Substitution and Purchase of Mortgage Loans. The
substitution or purchase of Mortgage Loans pursuant to Section 2.05 or Section
3.03 of the Transfer Agreement and Section 2.06 or Section 3.03 of the Pooling
and Servicing Agreement shall occur in the following manner:
(i) On or before the date of such substitution or
purchase, the Servicer shall send the Trustee notice, with a copy to
Custodian, indicating the Mortgage Loans to be replaced with Qualified
Substitute Mortgage Loans or to be purchased and the aggregate purchase
prices and Substitution Adjustments, if any, to be paid on such date.
(ii) Upon receiving written confirmation from the
applicable Depositors and the Trustee on behalf of the
Certificateholders that they have received the applicable purchase
price, Qualified Substitute Mortgage Loans or Substitution Adjustments,
Custodian shall return to the applicable party (as identified to the
Custodian by the Trustee) Mortgage Files related to the Mortgage Loans
purchased or substituted on such date.
Section 4.3. No Service Charge for Transfer of Mortgage Loans.
No service charge shall be made for any transfer of Mortgage Loans, but
Custodian may require payment from the Servicer of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
of Mortgage Loans.
Section 4.4. Defeasance. When a Mortgage Loan is purchased or
substituted by the Servicer, the Depositor or the applicable Originator pursuant
to the terms of the Transfer Agreement and the Pooling and Servicing Agreement,
the applicable Mortgage Holder's interest in such Mortgage Loan and all
Collateral with respect to such Mortgage Loan shall terminate,
such Mortgage Loan and related Collateral shall revert to the applicable
Originator and the applicable Mortgage Holder's rights, title and interest
therein shall cease, and the Trustee shall execute such instruments
acknowledging termination and discharge of its interest therein as are required
by applicable law.
ARTICLE V
CUSTODIAN
Section 5.1. Representations, Warranties and Covenants of
Custodian. Custodian hereby represents and warrants to, and covenants with, the
Originators, the Depositors, the Representative, the Servicer, the Certificate
Insurer and the Trustee, that as of the date of each Trust Receipt and
Certification:
(i) Custodian is duly organized, validly
existing and in good standing under the laws of the United
States;
(ii) Custodian has the full power and authority to
hold each Mortgage Loan (whether acting alone or through an agent), to
hold title to the Mortgage Loans as custodian on behalf of the Mortgage
Holders, 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;
(iii) Neither the execution and delivery of this
Agreement, the delivery of Mortgage Loans and assignments of Mortgages
to Custodian, the issuance of the Mortgage Receipts and Trust Receipt
and Certifications, 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 bylaws 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; except that no
representation or warranty is made as to compliance with laws and
regulations, other than those of the United States, the State of
Florida and the Commonwealth of
Massachusetts, relating to qualifications, licensure or regulation of
custodians of mortgage loans originated in states or commonwealths
other than Florida or Massachusetts;
(iv) 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;
(v) To Custodian's knowledge after due
inquiry, there is no litigation pending or threatened, which if
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 a
material adverse effect on the financial condition of Custodian;
(vi) 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 or thereby; except that no representation or
warranty is made as to consents, approvals, authorizations or orders of
any courts or governmental agencies or bodies, other than those of the
United States, the State of Florida and the Commonwealth of
Massachusetts, relating to qualifications, licensure or regulation of
custodians of mortgage loans originated in states or commonwealths
other than Florida and Massachusetts; and
(vii) Upon written request of the Trustee or the
Certificate Insurer, Custodian shall take such steps as requested by
the Trustee or the Certificate Insurer to protect or maintain any
interest in any Mortgaged Property and any insurance applicable
thereto.
Custodian makes no representations or warranties as to the
validity, legality, sufficiency, enforceability, perfection, genuineness or
prior recorded status of any of the documents contained in each Mortgage File or
the collectability, insurability, effectiveness or suitability of any Mortgage
Loan.
Section 5.2. Charges and Expenses. The Servicer 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
the parties hereto and Custodian, 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 acquire any lien upon any Mortgage
Loan deposited under this Agreement or the Transfer Agreement or the Pooling and
Servicing Agreement, or any claim against any Mortgage Holder by reason of the
failure of the Servicer to pay any of such charges or expenses and (ii) in the
event the Servicer 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 the Servicer or another Person has made adequate provision for payment of
Custodian's fees and expenses. The Servicer shall indemnify the Custodian
against payment of any documentary stamp taxes, intangible taxes and other
similar taxes, penalties and interest incurred in connection with the Mortgage
Loans and the transactions contemplated hereby.
Section 5.3. No Adverse Interests. Custodian coven ants and
warrants to the Originators, the Depositors, the Representative, the Servicer,
the Certificate Insurer, and the Trustee, that as of the date of each Trust
Receipt and Certification: (i) it holds no adverse interest, by way of security
or otherwise, in any Mortgage Loan; 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 Mortgage
Loan, other than Custodian's rights as custodian hereunder.
Section 5.4. Inspections. Upon reasonable prior written notice
to Custodian, the Servicer, the Depositors, the Trustee, the Certificate Insurer
and such Person'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
Mortgage Loans.
Section 5.5. 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, and
(3) forgery insurance subject to deductibles and in such amounts, as is
customary for custodians of this kind, and with insurance companies reasonably
acceptable to the Servicer, the Trustee and the Certificate Insurer. A
certificate of the respective insurer as to each such policy or a blanket policy
for such coverage shall be furnished to the Servicer, the Trustee or the
Certificate Insurer, 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 10 days advance notice thereof.
Section 5.6. Limitation of Liability. Custodian assumes no
obligation, and shall be subject to no liability, under this Agreement, except
for its negligence or willful misconduct in the performance of the 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 5.7. Indemnification. The Servicer hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reasons of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Servicer (said approval not to be
unreasonably withheld), and the cost of defending any action, suit or
proceedings or resisting any claim. Notwithstanding the foregoing, it is
specifically understood and agreed that in the event any such claim, liability,
loss, action, suit or proceeding or other expense, fees or charge shall have
been caused by reason of any negligent act, negligent failure to act, or willful
misconduct on the part of the Custodian, or which shall constitute a willful
breach of its duties hereunder, the indemnification provisions of this Agreement
shall not apply. The Custodian agrees to indemnify, defend and hold harmless the
Trustee against any liability to Certificateholders arising out of the
negligence or willful misconduct of the Custodian (a) in the verification or
execution of any Trust Receipt and Certification or (b) resulting in the loss of
Mortgage Files in the custody of the Custodian. This indemnity shall include
indemnification as to reasonable attorneys' fees and costs, whether or not suit
be brought, and including such fees and costs on appeal. The Trustee shall give
prompt written notice to the Custodian of any claim for which indemnity is or
may be sought and shall afford to the Custodian the opportunity to defend such
claim.
Section 5.8. Further Rights of Custodian. If the Custodian is
at any time uncertain of its obligations hereunder, the Custodian, upon prior
written notice to the Trustee, the Originators, the Depositors and the Servicer,
may refrain from taking any action with respect to such matter until such
uncertainty is removed. If conflicting demands are made on the Custodian with
respect to any matter, the Trustee's demand shall control, except during the
period prior to the issuance of the Trustee's Trust Receipt pursuant to Section
3.1 hereof, when the applicable Mortgage Holder's demand shall control and the
Custodian shall have the right to rely on such controlling demand. The Custodian
shall have the right in any such case to interplead any or all of the documents
contained in the Mortgage Files in a court of competent jurisdiction and, upon
delivery thereof, shall have no further obligations thereunder with respect to
such documents.
(b) The obligations of the Custodian shall be
determined solely by the express provisions of this Agreement.
No representation, warranty, covenant or obligation of the
Custodian shall be implied with respect to this Agreement or the
Custodian's service hereunder. Without limiting the generality of the foregoing
statement, except as specifically required herein, the Custodian shall be under
no obligation to inspect, review or examine the Mortgage Files to determine that
the contents thereof are complete, genuine, enforceable or appropriate for the
represented purpose or that they have been actually recorded or filed in
required offices or that they are other than what they purport to be on their
face.
(c) No provision of this Agreement shall require the Custodian
to spend or risk its own funds or otherwise incur financial liability in
performance of its duties under this Agreement unless, pursuant to Section 5.2
hereof, adequate provision has been made for the reimbursement of the
Custodian's expenses hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Amendment. This Agreement may be amended from
time to time by Custodian, the Originators, the Depositors, the Representative,
the Servicer and the Trustee (subject to the prior written consent of the
Certificate Insurer) by written agreement signed by such parties.
Section 6.2. Governing Law. 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.
Section 6.3. Notices. All demands, notices and communication
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by overnight mail, certified mail or
registered mail, postage prepaid, to (i) in the case of the Servicer, each
Originator and the Representative, EquiCredit Corporation of America, 00000
Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000, Attention: General
Counsel, (ii) in the case of each Depositor, c/o EquiCredit Corporation of
America, 00000 Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000,
Attention: General Counsel, (iii) in the case of the Trustee, U.S. Bank National
Association, c/o First Trust National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: EQCC Home Equity Loan Trust 1997-3,
(iv) in the case of the Custodian, BankBoston, N.A., 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Mail Stop 01-1B-06 and (v) in the case of the
Certificate Insurer and the Rating Agencies, at their respective addresses set
forth in the Pooling and Servicing Agreement, and, in each such case, at such
other addresses as may hereafter be furnished to each party hereto in writing.
Section 6.4. 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 covenants, agreements,
provisions or terms of this Agreement.
Section 6.5. No Partnership. Nothing herein contained
shall be deemed or construed to create a co-partnership or joint
venture between Custodian and the other parties hereto.
Section 6.6. Termination of Agreement. This Agreement shall be
terminated upon termination of the Pooling and Servicing Agreement or at the
option of Trustee on 30 days written notice to Custodian, the Depositors and the
Originators. Concurrently with, or as soon as practicable after, the termination
of this Agreement, Custodian shall redeliver the Mortgage Files to the Trustee
at such place as the Trustee may reasonably designate. In connection with the
administration of this Agreement, Custodian and the Trustee may agree from time
to time upon the interpretation of the provisions of this Agreement, as such
interpretation may in their opinion be consistent with the general tenor and
purposes of this Agreement, any such interpretation to be signed and annexed
hereto.
Section 6.7. 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 6.8. Assignment. No party hereto shall sell,
pledge, assign or otherwise transfer this Agreement without the
prior written consent of the other parties hereto.
Section 6.9. Headings. Section headings are for
reference purposes only and shall not be construed as a part of
this Agreement.
Section 6.10. Advice of Counsel. Custodian shall be entitled
to rely and act upon advice of counsel with respect to its performance hereunder
as Custodian and shall be without liability for any action reasonably taken
pursuant to such advice, provided that such action is not in violation of
application Federal or State law. This paragraph shall not negate Custodian's
obligations under Section 5.7.
Section 6.11. Third Party Beneficiary. The
Certificate Insurer is an intended third party beneficiary of
this Agreement.
Section 6.12. Resignation of Custodian. (a) The
Custodian may at any time resign and terminate its obligations
under this Agreement upon at least 90 days' prior written notice
to the Servicer and the Trustee. The Custodian may be removed at any time at the
written request of the Trustee or the Servicer. In the event of such resignation
or removal, the Servicer shall promptly appoint a successor custodian acceptable
to the Trustee and the Certificate Insurer (which approvals shall not be
unreasonably withheld). If the Servicer fails to appoint a successor custodian
within 30 days, the Trustee shall appoint a successor custodian. In no event
shall the resignation of the Custodian be effective until a successor custodian
is duly appointed hereunder. If a successor Custodian has not been appointed
and/or has not accepted appointment within 90 days after giving notice of such
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor custodian. One original
counterpart of such instrument of appointment shall be delivered to each of the
Servicer, the Custodian and the successor custodian. The Servicer shall notify
S&P and Xxxxx'x of any such resignation or removal and the appointment of a
successor custodian.
(b) In the event of any resignation, the
Custodian shall promptly transfer to the successor custodian (or to the Trustee
if no successor custodian has been appointed) all of the Mortgage Files in its
possession under this Agreement and take such other action as may be reasonably
requested by the Servicer or Trustee to effect the transfer of the Custodian's
Mortgage Files to the successor custodian, which shall provide a written receipt
for all such transferred documents and instruments. On completion of such
transfer, the Custodian shall be relieved of all further responsibilities and
obligations hereunder.
Section 6.13. Limitation of Liability of Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed by U.S. Bank National Association, not in its individual capacity
but solely in its capacity as Trustee, and in no event shall U.S. Bank National
Association in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Depositors hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Depositors.
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
ORIGINATORS
EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC.
EQUICREDIT CORPORATION/ALA. & MISS.
By:_______________________________
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President
EQUICREDIT CORPORATION OF AMERICA,
as Representative and Servicer
By:_______________________________
Name: Xxxxxxx X. Xxxx, Xx.
Title: Senior Vice President
DEPOSITORS
EQCC RECEIVABLES CORPORATION
By:_______________________________
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President
EQCC ASSET BACKED CORPORATION
By:_______________________________
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President
TRUSTEE
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CUSTODIAN
BANKBOSTON, N.A.,
as Custodian
By:_______________________________
Name:
Title:
EXHIBIT A
TRUST RECEIPT AND CERTIFICATION
Trust Receipt No._____
Aggregate Outstanding
Principal Amount:_____
September 1, 1997
To: [DEPOSITOR]
[TRUSTEE]
Re: Custodial Agreement, dated as of September 1, 1997
(the "Custodial Agreement"), by and among the
Originators listed on Exhibit C thereto
(collectively, the "Originators") Equicredit
Corporation of America, as Representative (the
"Representative") and as Servicer (the
"Servicer"), EQCC Receivables Corporation and EQCC
Asset Backed Corporation (collectively, the
"Depositors"), U.S. Bank National Association, as
Trustee (the "Trustee") and BankBoston, N.A., as
Custodian (the "Custodian")
Gentlemen:
In accordance with the provisions of Section 3.2 of the
above-referenced Custodial Agreement, the undersigned, as Custodian, hereby
certifies that it has received all of the items listed in Section 3.1 of the
Custodial Agreement with respect to each Mortgage Loan identified on the
Mortgage Loan Schedule (the "Mortgage Loan Schedule") attached hereto dated as
of _______, 199_. Custodian confirms that the Mortgage Loan number in each
Mortgage File conforms to the respective Mortgage Loan number listed on the
Mortgage Loan Schedule and that the "Aggregate Outstanding Principal Amount" set
forth above corresponds to like information contained on the Mortgage Loan
Schedule. Any exceptions or deficiencies in a Mortgage File which are required
by the Custodial Agreement to be reported are set forth in the Master Exception
Report dated _________ , 199_ and made a part hereof. Capitalized terms used
herein without definition shall have the meanings ascribed to them in the
Custodial Agreement.
Custodian further certifies that as to each Mortgage Loan,
Custodian holds the Mortgage Loan in its name as custodian for the benefit of
[the Depositor] [the Trustee], without written notice (a) of any adverse claims,
liens or encumbrances, (b) that any Mortgage Loan was overdue or has been
dishonored, (c) of
evidence on the face of any Mortgage Loan or other document in the Mortgage File
of any security interest therein, or (d) of any defense against or claim to the
Mortgage Loan 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 Mortgage File or the
collectability, insurability, effectiveness or suitability of any Mortgage Loan.
Custodian confirms that it holds each Mortgage Loan and the
other documents in the related Mortgage File for the benefit of [the
Depositor][the Trustee] and its transferees from time to time. Custodian hereby
acknowledges and agrees that it is holding such Mortgage Loans now and
hereafter, from time to time, in its custody or control as agent and bailee for
the [Depositor][the Trustee], if the transfer of Mortgage Loans is deemed not to
be an absolute transfer of such Mortgage Loans, subject to the continuing pledge
and security interest granted by [Originator][Depositor] to [the Depositor][the
Trustee] under the [Transfer Agreement] [Pooling and Servicing Agreement].
Upon repurchase or substitution of the Mortgage Loans to which
this Trust Receipt and Certification relates and payment of the applicable
repurchase price, the Mortgage Loans to which this Trust Receipt and
Certification relates shall be returned and released by Custodian to
[Depositor][the Trustee], and this Trust Receipt and Certification shall be and
be deemed to be canceled by Custodian and of no force and effect.
------------------------
----------------,
as Custodian
By_______________________
Name:
Title:
A-1
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: [Custodian]
Re: Custodial Agreement, dated as of September 1,
1997, by and among the Originators listed on
Exhibit C thereto (collectively, the
"Originators"), Equicredit Corporation of America,
as Representative (the "Representative") and as
Servicer (the "Servicer"), EQCC Receivables
Corporation and EQCC Asset Backed Corporation
(collectively, the "Depositors"), U.S. Bank
National Association, as Trustee (the "Trustee")
and BankBoston, N.A., as Custodian (the
"Custodian")
In connection with the administration of the Mortgage Loans
held by you as Custodian under the above-referenced Custodial Agreement,
[_________], on behalf of [________], requests the release, and acknowledges
receipt, of the following for the Mortgage Loan described below, for the reason
indicated:
A. Documents Released
_____ 1. Mortgage Note
_____ 2. Mortgage
_____ 3. Assignment of Mortgage
_____ 4. Other documents:_______________________
=======================================
---------------------------------------
B. Mortgagor's Name, Address & Zip Code:
C. Mortgage Loan Number:
D. Reason for Requesting Documents (check one)
_____ 1. Mortgage Loan Paid in Full.
_____ 2. Mortgage Loan in Foreclosure.
_____ 3. Mortgage Loan Substituted.
_____ 4. Other Liquidation (Mortgage Loan in Bankruptcy,
Repurchase, Rescission).
_____ 5. Non Liquidation (Other, explain)
====================================
If box 1, 3 or 4 above is checked, and if
all or part of Mortgage File was previously released to us,
please release to us our previous receipt on file with you, as
well as any additional documents in your possession relating
to the above specified Mortgage Loan.
If box 2 or 5 above is checked, upon our
return of all of the above documents to you as Custodian,
please acknowledge your receipt by signing in the space
indicated below, and returning this form.
The Servicer hereby certifies that all
amounts received or to be received in connection with such
payment which are required to be deposited in the Principal
and Interest Account pursuant to Section 5.03 of the Pooling
and Servicing Agreement dated September 1, 1997, have been or
will be so deposited.
EQUICREDIT CORPORATION OF AMERICA,
as Representative and Servicer
By__________________________
Name:
Title:
Date:
[--------------------------]
By__________________________
Name:
Title:
Date:
B-1
Documents returned to Custodian:
-----------------------------------------
as Custodian
By____________________________
Name:
Title:
Date:
B-2
EXHIBIT C
ORIGINATORS
EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC
EQUICREDIT CORPORATION/ALA. & MISS.
C-1
EXHIBIT D
Transfer Certificate
[Date]
BANKBOSTON, N.A.
as Custodian under the
Custodial Agreement (defined below)
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
RE: Custodial Agreement, dated as of September 1, 1997
(the "Custodial Agreement"), by and among the
Originators listed in Exhibit C thereto
(collectively, the "Originators"), Equicredit
Corporation of America, as Representative (the
"Representative") and as Servicer (the
"Servicer"), EQCC Receivables Corporation and EQCC
Asset Backed Corporation (collectively, the
"Depositors"), U.S. Bank National Association, as
Trustee (the "Trustee") and BankBoston, N.A., as
Custodian (the "Custodian")
To whom it may concern:
Pursuant to Section 3.1 of the above-referenced Custodial
Agreement (capitalized terms used herein but not otherwise defined shall have
the same meanings assigned to such terms in the Custodial Agreement), we hereby
advise you of the Transfer by the undersigned to [Depositor][the Trustee] of the
Mortgage Loans identified on the Mortgage Loan Schedule[s] attached [hereto] [to
the [Depositor's Trust Receipt[s]] with respect to the undersigned which we are
delivering to you for cancellation]. You are instructed to deliver to
[Depositor][the Trustee] a [Depositor's] [Trustee's] Trust Receipt evidencing
[such Depositor's] [the Trustee's] interest in these Mortgage Loans.
Very truly yours,
[--------------------------------]
By________________________________
Name:
Title:
D-1
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(See Exhibit D to the Pooling and Servicing Agreement)
I-1
