EXECUTION COPY
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CUSTODY AGREEMENT
among
IMC MORTGAGE COMPANY,
IMC CORPORATION OF AMERICA,
INDUSTRY MORTGAGE COMPANY, L.P.,
IMC INVESTMENT CORP.,
and COREWEST BANC
jointly and severally
as Borrowers,
XXXXX XXXXXX REAL ESTATE SECURITIES INC.,
Lender
and
FIRST NATIONAL BANK OF BOSTON
as Custodian
Dated as of February 28, 1997
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TABLE OF CONTENTS
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RECITALS............................................................................................... 1
SECTION 1. Definitions................................................................................ 1
SECTION 2. Appointment of Custodian................................................................... 3
SECTION 3. Delivery of Mortgage Files to Custodian.................................................... 4
SECTION 4. The Custodian's Receipt, Examination and Certification of
Mortgage Files and Issuance of Trust Receipt........................................... 6
SECTION 5. Possession of Mortgage Files............................................................... 7
SECTION 6. Release of Custodian's Mortgage Files for Servicing........................................ 9
SECTION 7. Review and Deposit of Additional Pledged Loans............................................. 10
SECTION 8. Waiver by the Custodian.................................................................... 10
SECTION 9. Right of Inspection by Lender and Third Person............................................. 10
SECTION 10. Custodian's Fees and Expenses.............................................................. 10
SECTION 11. Termination of Agreement................................................................... 11
SECTION 12. Resignation and Removal of Custodian....................................................... 11
SECTION 13. Limitation on Obligations of the Custodian................................................. 12
SECTION 14. Notices.................................................................................... 13
SECTION 15. No Assignment or Delegation by the Custodian............................................... 14
SECTION 16. Controlling Law............................................................................ 14
SECTION 17. Agreement for the Exclusive Benefit of Parties............................................. 14
SECTION 18. Entire Agreement........................................................................... 14
SECTION 19. Exhibits................................................................................... 14
SECTION 20. Indulgences, Not Waivers................................................................... 14
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SECTION 21. Titles Not to Affect Interpretation........................................................ 15
SECTION 22. Provisions Separable....................................................................... 15
SECTION 23. Representations and Warranties of the Custodian............................................ 15
SECTION 24. Counterparts............................................................................... 16
SECTION 25. Additional Borrowers....................................................................... 16
EXHIBITS
EXHIBIT A - LETTER OF TRANSMITTAL...................................................................... A-1
EXHIBIT B - NOTICE TO THE CUSTODIAN.................................................................... B-1
EXHIBIT C - TRUST RECEIPT.............................................................................. C-1
EXHIBIT D - NOTICE OF TERMINATION...................................................................... D-1
EXHIBIT E - NOTICE OF DEFAULT CERTIFICATE.............................................................. E-1
EXHIBIT F - LETTER TO CUSTODIAN RE: LENDER'S TRUST RECEIPT............................................. F-1
EXHIBIT G - LETTER TO CUSTODIAN RE: ENDORSEE'S TRUST RECEIPT........................................... G-1
EXHIBIT H - REQUEST FOR RELEASE OF DOCUMENTS........................................................... H-1
EXHIBIT I - CONFIRMATION OF REPAYMENT AND RECEIPT...................................................... I-1
EXHIBIT J - BORROWER ADDITION AGREEMENT
ii
THIS CUSTODY AGREEMENT entered into as of February 28, 1997,
by and among IMC MORTGAGE COMPANY, IMC CORPORATION OF AMERICA, INDUSTRY MORTGAGE
COMPANY, L.P., IMC INVESTMENT CORP. and COREWEST BANC, jointly and severally,
each a "Borrower" and collectively "Borrowers"), XXXXX XXXXXX REAL ESTATE
SECURITIES INC. ("Lender"), and FIRST NATIONAL BANK OF BOSTON (the "Custodian"),
recites and provides:
RECITALS
Borrowers and Lender have entered into that certain Loan and
Security Agreement dated as of February 28, 1997 (the "Loan Agreement"). IMC
Mortgage Company is obligated to service the Pledged Loans pursuant to the terms
and conditions of the Loan Agreement.
Borrowers desire to deposit with the Custodian all Pledged
Notes and Mortgages evidencing the Pledged Loans, together with the other
documents included in the Mortgage Files related to the Pledged Loans, to be
held by the Custodian as bailee and custodian for Lender and its assigns until
otherwise instructed by Lender, all in connection with Advances under the Loan
Agreement.
Lender may transfer or assign its interest in the Pledged
Loans to one or more Third Persons or Assignee, and the Custodian shall act as
custodian for such Third Persons or Assignee, as the case may be. Custodian
desires and is able to perform the duties and obligations as custodian for
Lender as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, and for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions. For the purposes of this Agreement,
the following terms shall have the indicated meanings unless the context or use
indicates another or different meaning and intent, the definitions of such terms
are equally applicable to the singular and the plural forms of such terms, the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular section or other
subdivision, and section references refer to sections of this Agreement. All
terms used herein and not defined shall have the respective meanings set forth
in the Loan Agreement.
"Agreement" shall mean this Custody Agreement, as supplemented
or amended from time to time.
"Assignee" shall mean The Chase Manhattan Bank, N.A., as agent
for certain beneficiaries pursuant to certain repurchase transaction triparty
custody agreements.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Business Day" shall mean any day other than (a) Saturday,
Sunday and any day on which banks located in the City of New York, New York are
authorized or obligated by law or executive order to be closed, or (b) any other
day on which Lender is closed for business.
"Custodial Register" shall mean the register maintained by
Custodian pursuant to Section 5(f), which reflects as to each Pledged Loan the
Person to whom the related Trust Receipt has been issued.
"Custodian" shall mean First National Bank of Boston, or its
successor custodian.
"Letter of Transmittal" shall have the meaning set forth in
Section 3(b) of this Agreement.
"Loan Number" shall have the meaning set forth in Section 3(a)
of this Agreement.
"Mortgage" means the mortgage, deed of trust or other
instrument creating a first or second lien on an estate in fee simple interest
in real property securing the Pledged Note.
"Mortgage Assignment" shall mean an assignment of the Mortgage
in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage.
"Mortgage File" shall have the meaning set forth in Section
3(b) hereof.
"Mortgage Loan" means any residential mortgage loan originated
by Borrower in accordance with the Seller's Guide.
"Notice Loan Schedule" shall have the meaning set forth in
Section 5(b) of this Agreement.
"Notice of Termination" shall mean the notice substantially in
the form of Exhibit D hereto.
"Officer's Certificate" shall mean a certificate signed by (i)
an officer or an employee, authorized to sign an officer's certificate, of
Borrower or other Person having officers, submitting a Mortgage File to the
Custodian or (ii) the closing attorney for the Pledged Loan. (The text of any
particular Officer's Certificate may be stamped upon a document constituting a
portion of a Mortgage File so long as such stamped text is signed by manual or
facsimile signature by an officer or an employee authorized to sign an Officer's
Certificate.)
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
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"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan
that is pledged by Borrower and accepted by Lender in connection with an
Advance.
"Pledged Loan Schedule" shall mean a schedule of Pledged Loans
identifying each Pledged Loan by Borrower's loan number, Mortgagor's name and
address (including the state and zip code) of the mortgaged property, whether
such Pledged Loan is secured by a first or second lien on the related Mortgaged
Property, the loan-to-value ratio, the appraised value of the Mortgaged
Property, the outstanding principal amount as of a specified date, the initial
interest rate borne by such Pledged Loan, the original principal balance
thereof, the current scheduled monthly payment of principal and interest, the
maturity of the related Pledged Note, the property type, the occupancy status,
the original term to maturity, and whether the Pledged Loan (including the
related Pledged Note) has been modified.
"Pledged Note" means the note or other evidence of
indebtedness of a Mortgagor secured by a Mortgage.
"Seller's Guide" means the underwriting and servicing
guidelines established by IMC Mortgage Company and approved by Lender, a true
and correct copy of which was previously provided to Lender by Borrower.
"Servicer" shall mean IMC Mortgage Company in its capacity as
servicer of the Pledged Loans.
"Third Person" shall mean a Person other than Borrower, Lender
or the Custodian, which Person has acquired an interest in any Pledged Loans
from Lender and continues to have an interest in such Pledged Loans.
"Trust Receipt" shall mean an instrument substantially in the
form of Exhibit C hereto.
"Wet Loan List" shall have the meaning set forth in Section
3(d) of this Agreement.
"Wet Mortgage Loan" means any residential mortgage loan
originated by Borrower in accordance with the Seller's Guide with respect to
which the related Mortgage File has not been deposited with the Custodian on or
prior to the related Advance Date.
SECTION 2. Appointment of Custodian. Lender hereby appoints
Custodian, and Custodian hereby accepts its appointment, to act as the bailee of
and agent for Lender and its successors and assigns (including any Third Person)
for the purpose of taking custody of, and certifying receipt of, Pledged Loans
and the proceeds thereof or substitutions therefor. With respect to each Pledged
Loan, Custodian's appointment as Lender's bailee and agent shall terminate upon
receipt by Lender of all amounts of principal and interest and any other amounts
due and owing to Lender by the Borrower.
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SECTION 3. Delivery of Mortgage Files to Custodian.
(a) Representations of Borrower. With respect to each Advance
other than an Advance secured by a Wet Mortgage Loan, Borrower represents that
it has, prior to the pledge of any Pledged Loan to Lender pursuant to the Loan
Agreement, delivered to the Custodian those documents designated in items (1) -
(6) below (to the extent applicable to such Pledged Loans). All documents
delivered to the Custodian shall have been placed by Borrower or its
representative in an appropriate file folder, properly secured, and clearly
marked with the name of the Mortgaged Property and the loan number (the "Loan
Number").
(b) Mortgage File. By delivery of a letter of transmittal
substantially in the form of Exhibit A hereto (each, a "Letter of Transmittal"),
Borrower will from time to time certify that it has delivered and released to
the Custodian the related Mortgage Files for the Pledged Loans referred to in
such Letter of Transmittal and has in its possession the other documents with
respect to the Pledged Loans identified in the Pledged Loan Schedule attached to
the Letter of Transmittal as Schedule 1.
"Mortgage File" means the following documents (all of which
together constitute an original mortgage file):
(1) the original Pledged Note, endorsed, "Pay to the order of
________________, without recourse" and signed, by facsimile or manual
signature, in the name of Borrower by an authorized officer. If the
Pledged Note has been signed by a Person on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized and
empowered such Person to sign or a copy of such power of attorney
together with an Officer's Certificate certifying that such copy
represents a true and correct copy and that such original has been duly
recorded in the appropriate records depository for the jurisdiction in
which the Mortgaged Property is located. To the extent that there is no
room on the face of the Pledged Note for endorsements, the endorsement
may be contained on an allonge, if the law by which such Pledged Note
is governed so permits. Such allonge shall be firmly affixed to the
Pledged Note so as to become a part thereof;
(2) the original of any loan agreement and guarantee(s)
executed in connection with the Pledged Note;
(3) with respect to any Pledged Loans, the original Mortgage,
with evidence of recording thereon, or, if the original Mortgage has
not yet been returned from the recording office, a copy of the original
Mortgage together with an Officer's Certificate (which may be a blanket
Officer's Certificate of Borrower covering all such Pledged Loans)
certifying that the copy is a true copy of the original of the Mortgage
which has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located,
or a copy of the Mortgage certified by the public recording office in
those instances where the original Mortgage has been lost, destroyed or
retained by the public recording office; and if the Pledged Note has
been signed by a Person on behalf of the Mortgagor, the original power
of attorney or other instrument that authorized and empowered such
Person to sign or a copy of such power
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of attorney together with an Officer's Certificate certifying that such
copy represents a true and correct copy and that such original has been
duly recorded in the appropriate records depository for the
jurisdiction in which the Mortgaged Property is located;
(4) with respect to any Pledged Loans, the original Mortgage
Assignment assigned in blank for each Pledged Loan, in form and
substance acceptable for recording (except for the name of the
assignee) and signed in the name of the last endorsee by an authorized
officer;
(5) with respect to any Pledged Loans, the originals of all
intervening assignments of mortgage, if any, with evidence of recording
thereon or copies thereof certified by the related recording office or,
if the original of any such assignment has not yet been returned from
the recording office, a copy of the original of any such assignment
without evidence of recording thereon together with an Officer's
Certificate (which may be a blanket Officer's Certificate of Borrower
covering all such Pledged Loans) certifying that the copy is a true
copy of the original of any such assignment which has been delivered by
such attorney or officer for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located,
or a copy of the intervening assignment certified by the public
recording office in those instances where the original recorded
intervening assignment has been lost, destroyed or retained by the
public recording office;
(6) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon or, if the original of any such agreement has not yet
been returned from the recording office, a copy of the original of any
such agreement without evidence of recording thereon together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Pledged Loans) certifying that the copy is a
true copy of the original of any such agreement which has been
delivered by such attorney or officer for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located, or a copy of such agreement certified by the public recording
office in those instances where the original recorded agreement has
been lost, destroyed or retained by the public recording office; and
(7) the original lender's ALTA Policy of Title Insurance
or an equivalent thereto.
(c) Requirements Relating to Wet Mortgage Loans. Subject to
the terms of the Loan Agreement, Borrower may pledge, as part of the Pledged
Loans securing an Advance, Wet Mortgage Loans. In connection with any pledge or
assignment of Borrower's interest in a Wet Mortgage Loan, Borrower shall, not
later than 10:00 a.m. New York City time on the date of the related Advance,
deliver to the Custodian a Letter of Transmittal duly authorized, executed and
completed and, not later than the seventh (7th) day following the date of the
related Advance, shall deposit, or cause to be deposited, with the Custodian all
documents required to be delivered pursuant to Section 3(b) for each such Wet
Mortgage Loan with a copy of the Letter of Transmittal previously delivered,
which information shall also be delivered on
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computer readable magnetic diskette or tape. The Custodian shall (i) deliver to
Lender, not later than 10:00 a.m. New York City time on the related Advance
Date, a detailed list of all Wet Mortgage Loans in a form acceptable to Lender
(each, a "Wet Loan List"); and (ii) notify Lender not later than 4:00 p.m. New
York City time on the seventh (7th) day following the related Advance Date if
any documents described in Section 3(b) have not been received with respect to
any Wet Mortgage Loan. Borrower hereby represents, warrants and covenants to
Lender and the Custodian that it and any person or entity acting on its behalf
that has possession of any of the documents described in this Section 3(c) for
such Wet Mortgage Loan prior to the deposit thereof with the Custodian will hold
such documents in trust for the Lender.
SECTION 4. The Custodian's Receipt, Examination and
Certification of Mortgage Files and Issuance of
Trust Receipt.
(a) The Custodian shall examine the documents received by it
and confirm, as of the date of the Trust Receipt, that on their faces:
(1) the Pledged Note and Mortgage each bears an original
signature or signatures purporting to be the signature or signatures of
the Person or Persons named as the maker and mortgagor or grantor or,
in the case of copies of the Mortgage permitted under Section 3, that
such copies bear a reproduction of such signature or signatures;
(2) (a) the principal amount of the indebtedness secured by
the Mortgage is identical to the original principal amount of the
Pledged Note and the original principal amount on the Pledged Loan
Schedule; (b) the Pledged Note term is the same as set forth on the
Pledged Loan Schedule; and (c) the Pledged Note coupon is the same as
set forth on the Pledged Loan Schedule;
(3) the Pledged Note bears original endorsements, by either
manual or facsimile signature, which complete the chain of ownership
from the original holder or payee to the owner of the related Trust
Receipt;
(4) the original of the Mortgage Assignment and any
intervening mortgage assignment bears the original signature purporting
to be the signature of the named mortgagee or beneficiary (and any
other necessary party, including subsequent assignors) or in the case
of copies permitted under Section 3, that such copies bear a
reproduction of such signature or signatures and that the Mortgage
Assignment and any intervening mortgage assignment complete the chain
of title from the originator to Borrower and from Borrower in blank;
(5) the power of attorney (if any), as specified in Sections
3(b)(1) and 3(b)(3), (A) bears an original signature purporting to be
the signature of the maker of the Pledged Note and the mortgagor or
grantor of the Mortgage and (B) bears evidence that such power of
attorney was recorded in the appropriate records depository for the
jurisdiction where the Mortgaged Property is located or, in case of
copies permitted under Sections
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3(b)(1) and (2)(b)(3), that such copies bear a reproduction of such
signatures and such evidence of recordation; and
(6) if a Pledged Note or a Mortgage was executed by an
attorney-in-fact, the power of attorney specified in Sections 3(b)(1)
and 3(b)(3) is included and conforms to the requirements of such
section.
(b) If the Custodian has determined that all the required
documents are included in the Mortgage Files delivered to it and that such
related documents on their faces satisfy the requirements enumerated in Sections
3(a)(1) through 3(a)(6) hereof, the Custodian shall (i) sign a copy of the
related Letter of Transmittal and return the Letter of Transmittal to Borrower,
and (ii) remit to Lender or its designee a Trust Receipt, not later than 2:00
p.m. (New York City time) on the date of the related Advance, with respect to
such Mortgage Files signed by the Custodian. If upon examination of the
documents included in any Mortgage File, the Custodian determines that such
documents do not satisfy the above requirements, or is unable to confirm that
such documents satisfy such requirements, the Custodian shall xxxx such Pledged
Loan as an exception on its Trust Receipt. Except as set forth in the preceding
sentence, the Trust Receipt of the Custodian with respect to each Mortgage File
shall be deemed to include a certification that the documents reviewed by the
Custodian appear regular on their face and relate to the Pledged Loan described
in the Mortgage File and are in the possession and control of the Custodian.
(c) Under no circumstances shall the Custodian be obligated to
verify the authenticity of any signature on any of the documents received or
examined by it in connection with this Agreement or the authority or capacity of
any person to execute or issue any such document, nor shall the Custodian be
responsible for the value, form, substance, validity, perfection, priority,
effectiveness or enforceability of any of such documents.
(d) Any provision of this Agreement to the contrary
notwithstanding, Borrower shall notify the Custodian of the need to examine a
Mortgage File and deliver a related Trust Receipt not less than forty-eight (48)
hours prior to the date on which such Trust Receipt is required to be delivered.
(e) With respect to any Trust Receipt delivered to Lender.
hereunder, the Custodian shall revise its own internal books and records from
time to time to reflect its receipt or release of Pledged Loans under the terms
of this Agreement so that the applicable Pledged Loan Schedule for any such
Trust Receipt shall always accurately reflect the Pledged Loans held by the
Custodian under this Agreement.
SECTION 5. Possession of Mortgage Files.
(a) Possession of Mortgage Files on Behalf of Lender. The
Custodian shall segregate and retain possession and custody of the Mortgage
Files for the exclusive use and benefit of Lender and as agent and bailee of and
custodian for Lender for all purposes until otherwise notified by Lender
pursuant to subsection (b) hereof. The Custodian shall also make appropriate
notations in the Custodian's books and records reflecting that the Mortgage
Files are
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owned by Lender unless otherwise notified by Lender pursuant to subsection (b)
hereof. The Custodian shall not release any portion of the Mortgage Files to
Borrower or to any other party without the prior written authorization of the
registered holder of the Trust Receipt.
(b) Possession of Mortgage Files on Behalf of Assignee. Lender
hereby notifies Custodian that Lender shall assign, as of each Advance Date, all
of its right, title and interest in and to all Pledged Loans pledged by Borrower
pursuant to the Loan Agreement and all rights of Lender under the Loan Agreement
(and this Agreement) in respect of such Pledged Loans represented thereby to
Assignee. Borrower hereby irrevocably consents to such assignment. Assignment by
Lender of the Pledged Loans as provided in this Section 5(b) shall not release
Lender from its obligations otherwise under this Agreement. Lender's agreements
with each Assignee will specify that the Assignee cannot issue instructions
regarding the Pledged Loans or Mortgage Files unless Lender has defaulted on
Lender's obligations to such Assignee. Accordingly, the Custodian may not act on
requests from a Assignee to withdraw or otherwise dispose of Pledged Loans
unless the Assignee delivers to the Custodian an executed Notice of Default
Certificate in the form of Exhibit E hereto. The Custodian shall be entitled to
presume conclusively that the Notice of Default Certificate is properly executed
and that when delivered to the Custodian an Event of Default exists under
Lender's agreement with its Assignee.
(c) Possession of Mortgage Files on Behalf of Third Persons.
The Custodian acknowledges that Lender may transfer its interest in the Pledged
Loans to a Third Person. Upon receipt of written notice from Lender,
substantially in the form of Exhibit B hereto, that Lender has transferred its
interest in the Pledged Loans identified on a schedule to such notice (the
"Notice Loan Schedule") to a Third Person together with the Trust Receipt for
amendment of the Schedule attached thereto, the Custodian will promptly issue a
Trust Receipt to such Third Person and shall issue an amended Trust Receipt to
Lender, each of which will reflect the transfer of Lender's interest in certain
Pledged Loans to such Third Person. The notice sent by Lender to the Custodian
shall be in substantially the form of Exhibit B hereto and shall (i) specify the
name of the Third Person, (ii) specify the address of the Third Person, which
may be an address in care of Lender and (iii) have attached the Notice Loan
Schedule. Upon receipt of any such notice from Lender, the Custodian shall (a)
segregate and retain possession and custody of the Mortgage Files with respect
to the Pledged Loans in the Notice Loan Schedule as agent and bailee of and
custodian for such Third Person, and (b) make appropriate notations in the
Custodian's books and records reflecting that the Mortgage Files identified in
the Notice Loan Schedule are owned by such Third Person. The Custodian shall
segregate and maintain continuous custody of all Mortgage Files for the benefit
of the Person to whom it has issued a Trust Receipt.
(d) Aging Reports. Custodian shall promptly notify Lender if
any Pledged Loan has been subject to this Agreement for more than 210 days. In
addition, Custodian shall provide to Lender, not later than the 5th Business Day
of each month during the term of this Agreement, with a detailed listing of all
Pledged Loans relating to any outstanding Trust Receipt, which report shall
identify (i) the origination date of each such Pledged Loan and (ii) the date
that the Mortgage File relating to such Pledged Loan was originally certified by
Custodian and pledged to Lender.
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(e) Upon surrender of the Trust Receipt by Lender to the
Custodian, Lender may issue instructions regarding the Pledged Loans designated
in the applicable Trust Receipt, including instructions to withdraw Pledged
Loans.
(f) In the event a Trust Receipt is lost, destroyed or
otherwise unavailable for surrender to the Custodian, Lender will present to the
Custodian documentation in the form attached as Exhibit F or Exhibit G hereto.
Upon receipt by the Custodian of such documentation, Lender will have the right
to issue instructions regarding the Pledged Loans covered by a Trust Receipt
without surrender of the related Trust Receipt.
(g) The Custodian understands that Lender may need to examine
Pledged Loans subject to a Trust Receipt on a periodic basis. Such examination
shall take place on the premises of the Custodian. Lender will give the
Custodian two (2) Business Days' notice before Lender makes an examination.
Lender's agreements with each Assignee will grant Lender the right to make such
examinations.
(h) The Custodian shall cause to be kept at its corporate
trust office records in the form, scope and substance of a register (the
"Custodial Register") in which, subject to such reasonable regulations as it may
prescribe, the Custodian shall reflect the ownership of Pledged Loans as
confirmed by Trust Receipts as herein provided. The Custodial Register shall be
deemed to contain proprietary information and only Custodian and Lender shall
have access to such information.
SECTION 6. Release of Custodian's Mortgage Files for
Servicing. From time to time and as appropriate for the servicing of any of the
Pledged Loans by Borrower, the Custodian is hereby authorized, upon written
request and receipt of Borrower and consent and acknowledgement of Lender (to
the extent required by Exhibit H) in the form of Exhibit H, to release to
Borrower or its designee the related Mortgage File, or any documents contained
therein, set forth in such receipt to Borrower. All documents so released to
Borrower or its designee shall be held by it in trust for the benefit of Lender
and Third Person from time to time. Borrower or its designee shall return to the
Custodian the Mortgage File or such documents when Borrower's need therefor in
connection with servicing no longer exists but in no event later than ten (10)
Business Days after their release by the Custodian as provided herein.
Upon the payment in full of any Pledged Loan by the mortgagor,
and upon receipt by the Custodian of Borrower's request for release and
acknowledgement by Lender in the form of Exhibit H, the Custodian shall promptly
release the related Mortgage File to Borrower.
Borrower agrees that, at the time any request for release of
Mortgage Files is made to the Custodian under this Agreement, Lender shall be so
notified and a copy of any written request for release shall be furnished to
Lender. Upon its receipt of any released Mortgage Files, Borrower shall so
notify Lender.
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SECTION 7. Review and Deposit of Additional Pledged Loans.
(a) If, pursuant to the Loan Agreement, Borrower is required
to deliver additional Pledged Loans to the Custodian to cure a Margin Deficit or
if Borrower and Lender agree to cause additional Pledged Loans to become subject
to the Loan Agreement ("Additional Pledged Loans"), the Custodian shall retain
possession and custody of the Mortgage Files relating thereto pursuant to
Section 5 hereof and, upon receipt and review thereof, shall transmit to Lender
a Trust Receipt that shall supersede any Trust Receipt bearing an earlier date
and have attached thereto a complete Pledged Loan Schedule revised so as to give
effect to the Advance contemplated by such Trust Receipt.
(b) Two (2) days prior to the delivery of any Additional
Pledged Loans, Borrower will advise the Custodian whether the Custodian will be
required to review any Additional Pledged Loans Borrower undertakes to use its
best efforts to make available for review any such Additional Pledged Loans as
soon as is reasonably possible. Upon receipt thereof, the Custodian shall
perform its review of the Mortgage Files relating to any Additional Pledged
Loans in the manner contemplated by Section 5 hereof.
(c) Borrower covenants and agrees to provide to the Custodian
at the time Borrower delivers any Additional Pledged Loans under this Agreement,
and at the time any Pledged Loans are transferred to Borrower pursuant to
Section 5(c) hereof, a revised Pledged Loan Schedule reflecting current
information with respect to all Pledged Loans subject to the applicable Trust
Receipt, after giving effect to the related delivery or transfer.
SECTION 8. Waiver by the Custodian. Notwithstanding any other
provisions of this Agreement, the Custodian shall not at any time exercise or
seek to enforce any claim, right or remedy, including any statutory or common
law rights of set-off, if any, that the Custodian might otherwise have against
all or any part of a Mortgage File or the proceeds thereof. The Custodian
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of a security interest or otherwise, in
any Pledged Loan.
SECTION 9. Right of Inspection by Lender and Third Person.
Upon reasonable notice to the Custodian (which in no event shall be less than
two (2) Business Days notice), the Person or Persons for whom the Custodian is
acting as custodian, or their duly authorized representatives, may at any time,
during ordinary business hours, inspect and examine the Mortgage Files in the
possession and custody of the Custodian at such place or places where such
Mortgage Files are deposited.
SECTION 10. Custodian's Fees and Expenses. The Custodian
hereby acknowledges that Borrower has agreed to pay all fees due and owing to,
and except as otherwise provided herein, any expenses incurred by the Custodian
under this Agreement. The fees due to the Custodian for its services hereunder
shall be as set forth in a separate letter agreement between the Custodian and
Borrower. In addition to the fees referred to in the two foregoing sentences,
Borrower has agreed to pay all out-of-pocket expenses incurred by the Custodian
in connection with the review of each Mortgage File by it or its agent and its
issuance of a Trust Receipt relating thereto. Neither Lender nor any Third
Person shall have any liability
10
or obligation to pay any such fees or expenses, and the duties of the Custodian
hereunder shall be independent of Borrower's performance of its obligations to
the Custodian in respect of such fees and expenses.
SECTION 11. Termination of Agreement. This Agreement shall
become effective on and as of the date hereof and shall terminate upon the
earlier of (i) the Custodian's receipt of written Notice of Termination signed
by the Person or all of the Persons to whom the Custodian has issued Trust
Receipts and on whose behalf the Custodian is acting as agent, bailee and
custodian, (ii) the removal of all Mortgage Files from the possession of the
Custodian pursuant to the instructions of the Person or Persons entitled to
request such removal pursuant to this Agreement. The Custodian shall be entitled
to rely, and shall be protected in relying, on any such Notice of Termination
delivered to it by such Person or Persons and (iii) if the Advance relating to
any Pledged Loan is repaid by Borrower to Lender, the receipt by Lender of
principal and interest and any other amounts due and owing to Lender by the
Borrower under the Loan Agreement. If this Agreement terminates with respect to
any Pledged Loan by operation of clause (i) above, the Custodian shall deliver
the related Mortgage File then subject to this Agreement to the Person indicated
in the Notice of Termination. If the Advance relating to any Pledged Loan is
repaid by Borrower to Lender pursuant to clause (iii) above, then Lender shall
execute and deliver to the Custodian a document in substantially the form of
Exhibit I which confirms the receipt of principal and interest and any other
amounts due and owing to Lender relating to the Pledged Loan and the termination
and release of all of Lender's right, title and interest in such Pledged Loan,
and the Custodian upon receipt of such document shall deliver the related
Mortgage File for such Pledged Loan to Borrower or such other Person as Borrower
so directs. Upon such termination the Custodian shall deliver all Mortgage Files
then subject to this Agreement to the Person indicated in such Notice of
Termination or if no such Person is indicated, then to the Person or Persons to
whom the Custodian has issued Trust Receipts and for whom the Custodian is
acting on such date and the Custodian shall endorse the Pledged Notes without
recourse, representation and warranties and execute mortgage assignments
pursuant to any instruction by the Person on whose behalf the Custodian is
acting as agent and bailee pursuant to this Agreement.
SECTION 12. Resignation and Removal of Custodian.
(a) Resignation. The Custodian shall have the right, with or
without cause, to resign as the Custodian under this Agreement upon sixty (60)
days' prior written notice to Borrower, Lender and, to the extent of its
interest, any Third Person. Following any such resignation, the Custodian shall
continue to act as the "Custodian" under this Agreement until it delivers the
Mortgage Files to a duly appointed successor Custodian as provided in (c) below,
if any, or to any designee specified by Lender or any Third Person, as
applicable.
(b) Removal. Lender and, to the extent of its interest, any
Third Person may remove and discharge the Custodian from the performance of its
duties under this Agreement, by providing thirty (30) days' written notice to
the Custodian, signed jointly by Lender and a majority in interest of
(calculated with reference to the face value of the Pledged Loans) any Third
Person or Persons with any interest in the Pledged Loans, as evidenced by the
holding of a Trust Receipt, with a copy to Borrower. Following any such removal,
the Custodian shall
11
continue to act as the "Custodian" under this Agreement until it delivers the
Mortgage Files to a duly appointed successor Custodian as provided in (c) below,
if any, or to any designee specified by Lender or any Third Person, as
applicable.
(c) Appointment of Successor Custodian; Transfer of Pledged
Loans. Upon resignation or removal of the Custodian, Lender and, to the extent
of its interest and if permitted by Section 5 hereof, any Third Person shall
have 60 days in which to appoint and designate a successor to take possession of
their respective Mortgage Files or select one or more designees to take
possession thereof. Upon receipt of written direction regarding the foregoing
from Lender and any Third Person with respect to the Pledged Loans in which they
have an interest, as applicable, the Custodian shall deliver all Mortgage Files
to the person so designated within 10 days following delivery to the Custodian
of such written notice. If a successor Custodian is appointed, the Custodian
shall deliver the Mortgage Files in accordance with the written instructions of
Lender and a majority in interest of (calculated with reference to the face
value of the Pledged Loans) Third Person having interests in the Pledged Loans
to the extent such Third Person are permitted to take action with respect
thereto under Section 5 hereof setting forth the name and address of the
successor Custodian. If Lender and, to the extent of its interest, any such
Third Person, fail to jointly designate a successor Custodian or specify one or
more designees within such 60-day period, then the Custodian shall deliver
possession and custody to Lender and, if otherwise permitted under Section 4
hereof, any Third Person, of their respective Mortgage Files, as applicable, at
the address specified in the Custodian's records. The Custodian shall, as part
of the transfer of the Mortgage Files, deliver the Mortgage Assignment for each
Pledged Loan in recordable form and shall endorse the Pledged Note without
recourse, representation and warranties in accordance with Lender's or the
applicable Third Person's instructions. Any successor Custodian hereunder shall
be a financial institution whose deposits are insured by FDIC, have a net worth
of not less than $10,000,000 and shall have secure vault storage facilities
located in the State of New York or such other State as Lender and Borrower may
agree, in which the Mortgage Files are to be retained.
SECTION 13. Limitation on Obligations of the Custodian. The
Custodian shall have no duties or obligations other than those specifically set
forth herein, and no further duties or obligations shall arise by implication or
otherwise. The Custodian agrees to use its best judgment and good faith in the
performance of such obligations and duties and shall incur no liability to
Borrower for its acts or omissions hereunder, except as may result from its
gross negligence or willful misconduct. The Custodian shall also be entitled to
rely (and shall be protected in relying) upon written advice of its legal
counsel and to rely upon any written notice, document, correspondence, request
or directive received by it from Lender, any Third Person (if applicable), or
Borrower, as the case may be, that the Custodian believes to be genuine and to
have been signed or presented by the proper and duly authorized officer or
representative thereof, and shall not be obligated to inquire as to the
authority or power of any Person so executing or presenting such documents or as
to the truthfulness of any statements set forth therein. No provision of this
Agreement shall require the Custodian to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity is not reasonably assured to it. Borrower agrees to
indemnify, defend and hold the Custodian harmless from and against any claim,
legal action, liability or loss that is initiated against or incurred by
12
the Custodian, including court costs and reasonable attorney's fees and
disbursements, and all of the Custodian's other cost, damage or expense incurred
in connection with the Custodian's performance of its duties under this
Agreement, but excluding any such claim, legal action, liability, loss, cost,
damage or expense caused by Custodian's gross negligence or willful misconduct.
The Custodian shall at its own expense maintain at all times
during the existence of this Agreement and keep in full force and effect (a)
fidelity insurance, (b) theft and loss of documents insurance, (c) forgery
insurance, and (d) errors and omissions insurance. All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks which act as the Custodian in
similar Advances. The Custodian shall, upon written request, provide to
Borrower, or to any other Person as Borrower shall direct, a certificate signed
by an authorized officer of the Custodian certifying that the foregoing
insurance policies are in full force and effect. The Custodian shall use its
best efforts to ensure that such insurance shall not terminate prior to receipt
by Lender by registered mail of 30 days' prior written notice thereof.
SECTION 14. Notices. Any notice, demand or consent required or
permitted by this Agreement shall be in writing and shall be effective and
deemed delivered only when received by the party to which it is sent. Any such
notice, demand or consent shall be delivered in person or transmitted by a
recognized private courier service or deposited with the United States Postal
Service, certified mail, postage prepaid, return receipt requested, addressed as
follows, unless such address is changed by written notice hereunder:
If to Borrower:
IMC Mortgage Company
0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, CPA & Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Lender:
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx, First Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
13
If to the Custodian:
First National Bank of Boston
000 Xxxxxxx Xxxxxx
Mail Location: 01-1B-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Senior Manager, Vault Services
Telephone:
Telecopy:
SECTION 15. No Assignment or Delegation by the Custodian. The
Custodian shall not assign, transfer, pledge or grant a security interest in any
of its rights, benefits or privileges hereunder nor delegate or appoint any
other person to perform or carry out any of its duties, responsibilities or
obligations under this Agreement; any act or instrument purporting to effect any
such assignment, transfer, pledge, grant, delegation or appointment shall be
void.
SECTION 16. Controlling Law. This Agreement and all questions
relating to validity, interpretation, performance and enforcement shall be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of New York, without regard to any New York or other
conflict-of-law provisions.
SECTION 17. Agreement for the Exclusive Benefit of Parties.
This Agreement is for the exclusive benefit of the parties hereto, and their
respective successors and permitted assigns, and shall not be deemed to create
or confer any legal or equitable right, remedy or claim upon any other person
whatsoever except a Third Person to the extent rights are explicitly conferred
on any one or more Third Person pursuant to this Agreement.
SECTION 18. Entire Agreement. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof, including any prior
custody agreements. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing signed by Lender, Borrower and the Custodian.
SECTION 19. Exhibits. All Exhibits referred to herein or
attached hereto are hereby incorporated by reference into, and made a part of,
this Agreement.
SECTION 20. Indulgences, Not Waivers. Neither the failure nor
any delay on the part of a party hereto to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege
14
with respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the parties asserted to have
granted such waiver.
SECTION 21. Titles Not to Affect Interpretation. The titles of
sections and subsections contained in this Agreement are for convenience only,
and they neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
SECTION 22. Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
SECTION 23. Representations and Warranties of the Custodian.
The Custodian represents, warrants to, and covenants with Lender that on the
date hereof, and on the date of the issuance of any Trust Receipt by the
Custodian:
(1) The Custodian is (i) a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and (ii) duly qualified and in good standing
and in possession of all requisite authority, power, licenses, permits
and franchises in order to execute, deliver and comply with its
obligations under the terms of this Agreement;
(2) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action and the
execution and delivery of this Agreement by the Custodian in the manner
contemplated herein and the performance of and compliance with the
terms hereof by it will not (i) violate, contravene or create a default
under any applicable laws, licenses or permits to the best of its
knowledge, or (ii) violate, contravene or create a default under any
charter document or bylaw of the Custodian or to the best of the
Custodian's knowledge any contract, agreement, or instrument to which
the Custodian or by which any of its property may be bound and will not
result in the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its property;
(3) The execution and delivery of this Agreement by the
Custodian and the performance of and compliance with its obligations
and covenants hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required, it
has been obtained;
(4) This Agreement, and the original Trust Receipt issued
hereunder, when executed and delivered by the Custodian will constitute
valid, legal and binding obligations of the Custodian, enforceable
against the Custodian in accordance with their respective terms, except
as the enforcement thereof may be limited by applicable debtor relief
laws and that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or at law;
15
(5) Custodian does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(6) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened which, if determined adversely to
Custodian, would adversely affect the . 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;
(7) Upon written request of Lender or any Third Person, and
assurance reasonably satisfactory to Custodian that its costs of doing
so will be timely reimbursed and that Custodian will receive reasonable
compensation (in addition to the compensation provided for elsewhere in
this Agreement) for doing so, Custodian shall take such steps as may be
reasonably requested by Lender or any Third Person (consistent with
Custodian's undertakings hereunder) to protect or maintain any interest
in any real property securing the Pledged Loan owned by such owner and
any insurance applicable thereto.
SECTION 24. Counterparts. For the purpose of facilitating the
execution of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterpart shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
SECTION 25. Additional Borrowers. At the request of Borrowers
and upon the prior written consent of Lender, any affiliate of IMC Mortgage
Company may be added as a Borrower under this Custody Agreement by execution and
delivery to the Custodian of a Borrower Addition Agreement in the form of
Exhibit J hereto.
16
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date set forth above.
IMC MORTGAGE COMPANY
By:_____________________________________
Name:
Title:
IMC CORPORATION OF AMERICA
By:_____________________________________
Name:
Title:
INDUSTRY MORTGAGE COMPANY, L.P.
By:_____________________________________
Name:
Title:
IMC INVESTMENT CORP.
By:_____________________________________
Name:
Title:
COREWEST BANC
By:_____________________________________
Name:
Title:
17
FIRST NATIONAL BANK OF BOSTON
as Custodian
By:_____________________________________
Name:
Title:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:_____________________________________
Name:
Title:
18
EXHIBIT A
LETTER OF TRANSMITTAL
To: [Custodian] From: [Borrower]
[Address] [Address]
Pursuant to the Custody Agreement dated as of ___________,
199_ (the "Custody Agreement") among _____________________ (the "Custodian),
_________________________ ("Borrower"), and Xxxxx Xxxxxx Real Estate Securities
Inc., Borrower hereby delivers to you (i) the documents described below in
connection with the Pledged Loans identified on the attached schedule and (ii)
an updated Pledged Loan Schedule identifying each Pledged Loan in your custody
(including the Pledged Loans referred to in clause (i) above).
We understand that the list set forth below indicates in
summary fashion the materials for transmittal; it is not intended to describe
fully all the required characteristics of each item. We further understand that
each item sent to the Custodian must comply with the applicable requirements of
the Custody Agreement, and that all required documents must be delivered
together before the Custodian will accept the Pledged Loans.
[With respect to each of the "Wet Mortgage Loans" referred to
in clause (i) above, Borrower shall deliver, or cause to be delivered, to the
Custodian by not later than the 7th day after the date hereof, the following
documents:]
[With respect to each of the Pledged Loans referred to in
clause (i) above, Borrower has delivered, to the extent required by the Custody
Agreement, the following documents:]
Section 2
(1) Letter of Transmittal (original and one copy)
(2) Original Pledged Note (endorsed in blank), including all intervening
endorsements
Power of Attorney (if applicable)
(3) Original of any loan agreement and guarantee executed in connection
with the Pledged Notes, if applicable
(4) Mortgage
Original, or
Conformed Copy, together with the appropriate certificate
(5) Assignment of Mortgage in blank
original, or
Conformed Copy, together with the appropriate certificate
(6) Intervening Mortgage Assignment, if any
original, or
Conformed Copy, together with the appropriate certificate
(7) originals of all assumption, modification, consolidation or extension
agreements
(8) other.
Submitted The Custodian acknowledges receipt of the
By:____________________ documents referred to and agrees to hold and retain
possession thereof pursuant to the terms of the
Date:__________________ Custody Agreement.
Telephone Number:______ ______________, as Custodian
By:
Name:
Title:
A-2
EXHIBIT B
NOTICE TO THE CUSTODIAN
TO: _____________________, as Custodian
FROM: Xxxxx Xxxxxx Real Estate Securities Inc.
DATE: ___________________________
Pursuant to the Custody Agreement dated as of ___________,
199_, among _________________________, Xxxxx Xxxxxx Real Estate Securities Inc.
and _____________________, as Custodian ("Custody Agreement"), the undersigned
hereby notifies you that it has transferred its interest in the Mortgage Files
with respect to the Pledged Loans identified in the mortgage loan schedule
attached hereto (the "Notice Loan Schedule") to [TRANSFEREE NAME AND ADDRESS].
Included with this notice is the original Trust Receipt for
amendment of the Pledged Loan Schedule attached thereto. Capitalized terms used
herein without definition are as defined in the Custody Agreement.
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
[Name of transferee] hereby acknowledges
that (i) the Pledged Loans listed on the
Notice Loan Schedule are being held for
it by the Custodian pursuant to the
terms of the Custody Agreement, (ii) it
agrees to be bound by the Custody
Agreement, (iii) the Custodian shall not
comply with the request of a Third
Person to deliver Mortgage Files unless
such Third Person has delivered to the
Custodian an executed Notice of Default
Certificate and (iv) it is responsible
for payment of any fees and expenses of
the Custodian
incurred in connection with the issuance
of periodic reports to it or in
complying with its requests.
[NAME OF TRANSFEREE]
By:_____________________________________
Name:___________________________________
Title:__________________________________
cc: [Borrower]
B-2
EXHIBIT C
TRUST RECEIPT
[Date]
[TO BE ADDRESSED TO THE REGISTERED HOLDER]
Re: Custody Agreement dated as of ___________, 199_, among
____________________, Xxxxx Xxxxxx Real Estate Securities Inc.
and_________________________, as Custodian
Gentlemen:
In accordance with the provisions of Paragraph 4 of the
above-referenced Custody Agreement (the "Custody Agreement"), the undersigned,
as Custodian, hereby certifies that as to each Pledged Loan described in the
Pledged Loan Schedule, a copy of which is attached hereto, it has reviewed the
Mortgage File and has determined that, except as set forth on the Exception
Report attached hereto, (i) all documents required to be delivered to it
pursuant to the Custody Agreement are in its possession, (ii) such documents
have been reviewed by it and appear regular on their face and relate to such
Pledged Loan, and (iii) based on its examination of the foregoing documents,
such documents on their face satisfy the requirements set forth in Sections
3(a)(1) through 3(a)(6) of the Custody Agreement.
The Custodian hereby confirms that it is holding each such
Mortgage File as agent and bailee of and custodian for and for the exclusive use
and benefit of Xxxxx Xxxxxx Real Estate Securities Inc. ("PWRES") or its
transferee pursuant to the terms of the Custody Agreement.
This Trust Receipt is not a negotiable instrument. PWRES may,
however, transfer this receipt by a special endorsement to one other party. The
party that takes this receipt from PWRES or its affiliate by special endorsement
may only transfer this receipt by a second endorsement in PWRES's or its
affiliate's favor.
The Custodian will accept and act on instructions with respect
to the Pledged Loans only upon surrender of this receipt at its Corporate Trust
Office, [ADDRESS], Attention: ________________. If the receipt has been endorsed
and is held by a Person other than PWRES or one of its affiliates, we will
accept and act on instructions from the endorsee only if the attached Notice of
Default Certificate is executed and delivered to us stating that an Event of
Default has occurred under a repurchase agreement relating to this Trust Receipt
between PWRES and the endorsee.
All initially capitalized terms used herein shall have the
meanings ascribed to them in the above-referenced Custody Agreement.
_____________________, as Custodian
By:________________________________
Name:
Title:
C-2
EXHIBIT E
NOTICE OF DEFAULT CERTIFICATE
_______________, 199_
________________________
as Custodian [ADDRESS]
Gentlemen:
As the transferee of a Trust Receipt for certain Pledged
Loans, which Trust Receipt is attached hereto, we hereby notify you that an
event of default has occurred under our agreement with and we are entitled to
receive the Pledged Loans subject to the aforementioned Trust Receipt.
[_________________________________]
By:_______________________________
Name:
Title:
Notice Received by Custodian
on [Date]:
By:__________________________________
Title:
Date:
EXHIBIT F
__________________________,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_, among
_________________________, Xxxxx Xxxxxx Real Estate
Securities Inc. and ___________________________, as
Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of PWRES
evidencing entitlement to the Pledged Loans described on Schedule A hereto and
held by you as Custodian. You issued that receipt pursuant to our agreement with
_________________________ dated as of ________ __, 199_. The trust receipt has
been [lost, destroyed, etc.]. Every effort was made to recover the receipt;
those efforts were unsuccessful. It is, therefore, now unavailable for surrender
to you.
At the time of its [loss, destruction, etc.], the receipt was
held by us under [the terms of original issue, special . endorsement]. Since its
[issuance, endorsement] to us, we have not sold, assigned, transferred, pledged
or otherwise granted an interest in the trust receipt that has not been released
prior to the date hereof. Accordingly, this letter authorizes you to act on our
instructions regarding such Pledged Loans without surrender of the receipt to
you.
We hereby agree to indemnify and hold you harmless against any
loss, liability or expense that you may incur as a result of acting on our
instructions regarding such Pledged Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
EXHIBIT G
______________________,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_, among
_________________________, Xxxxx Xxxxxx Real Estate
Securities Inc.
and ___________________________, as Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of Xxxxx
Xxxxxx Real Estate Securities Inc. evidencing entitlement to the Pledged Loans
described on Schedule __ hereto and held by you in the name of
_______________________, as Custodian. You issued that receipt pursuant to our
agreement with _________________________ dated as of ___________, 1997. The
trust receipt has been [lost, destroyed, etc.]. Every effort was made to recover
the receipt; those efforts were unsuccessful. It is, therefore, now unavailable
for surrender to you.
At the time of its [loss, destruction, etc.], the receipt was
held by [name of transferee] under a special endorsement by us. We have attached
to this letter a special endorsement, from [name of transferee] conveying to us
its interest in the trust receipt and authorizing us to issue instructions
regarding the Pledged Loans subject thereto without surrender of the receipt.
[name of transferee] has represented to us that it has not sold, assigned,
transferred, pledged or otherwise granted an interest in the trust receipt to
any party other than PWRES. Accordingly, this letter authorizes you to act on
our instructions regarding such Pledged Loans without surrender of the receipt
to you.
We hereby agree to indemnify and hold you harmless against any
loss, liability or expense that you may incur as a result of acting on our
instructions regarding such Pledged Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:________________________________
Name:
Title:
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: _______________________
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_,
among _________________,
Xxxxx Xxxxxx Real Estate Securities Inc.
and _____________________, as
Custodian____________________________________________
In connection with the administration of Pledged Loans held by
you as Custodian for Lender and Third Person from time to time pursuant to the
above-referenced Custodial Agreement, we hereby request the release, and
acknowledge receipt, of the [specify documents] [related Mortgage Files] for the
Pledged Loans described in the attached Pledged Loan Schedule, for the reason
indicated.
Mortgagor's Name Address and Zip Code:
Pledged Loan Number:
Reason for Requesting Documents (check one):
______1. Pledged Loan paid in full. (The Custodian shall delete the
Pledged Loan from the applicable Pledged Loan Schedule and
send the amended Pledged Loan Schedule to Lender and any
related Third Person.)
______2. Payment of Advance of Pledged Loan pursuant to the Loan
Agreement. (The Custodian shall delete the Pledged Loan from
the applicable Pledged Loan Schedule and send the amended
Pledged Loan Schedule to Lender and any related Third Person.)
______3. Pledged Loan in foreclosure or otherwise released for
servicing.
If box 1 or 2 above is checked, and if all or part of the
Mortgage Files were previously released to IMC Mortgage Company please release
to IMC Mortgage Company its previous request and receipt on file with you, as
well as any additional documents in your possession relating to the specified
Pledged Loan.
If box 3 above is checked, upon the return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
IMC Mortgage Company understands and agrees that all documents
delivered to IMC Mortgage Company or its subservicer pursuant to this request
for release (other than with
respect to Items 1 or 2 shall be returned to the Custodian no later than
twenty-one (21) days from the date hereof. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Custody
Agreement.
[BORROWER]
By:_____________________________
Name:___________________________
Title:__________________________
Date:___________________________
Acknowledged and Agreed:
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
(Required if documentation relating to more than three (3) Mortgage Files are
outstanding or the release of a Pledged Note or Mortgage Assignment is
requested.)
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
Acknowledgement of documents returned to the Custodian, for the reasons listed
in item 3:
Custodian
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
H-2
EXHIBIT I
CONFIRMATION OF REPAYMENT AND RECEIPT
To: _____________________, as Custodian
[Borrower]
Date: __________ ___, 199_
Re: Custody Agreement, dated as of ___________, 199_, among Xxxxx Xxxxxx
Real Estate Securities Inc. (the "Lender"), _________________________
(the "Borrower") and _________________, as custodian thereunder
Lender hereby:
(a) Acknowledges receipt of $____________in immediately available funds
on behalf of Borrower;
(b) Acknowledges that the funds referred to in clause (a) above
constitute sufficient consideration under the terms of the Loan Agreement, dated
as of ___________, 1997 among Lender and Borrower, for the release by Lender of
its interest in the Pledged Loans listed on Schedule A hereto;
(c) Confirms that it has released to Borrower all of its right, title
and interest in and to the Pledged Loans listed on Schedule A hereto; and
(d) Confirms that it has not granted or created any interest in the
Pledged Loans listed on Schedule A hereto other than interests that have been
fully discharged or satisfied on or prior to the date hereof.
Dated: ________________ ___, 199_ XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT J
BORROWER ADDITION AGREEMENT
Reference is made to the Custody Agreement dated as of February 28,
1997 (as amended from time, the "Custody Agreement") by and among IMC
CORPORATION OF AMERICA, INDUSTRY MORTGAGE COMPANY, L.P., IMC INVESTMENT CORP.
and COREWEST BANC, INC. (jointly and severally, each a "Borrower" and
collectively "Borrowers"), XXXXX XXXXXX REAL ESTATE SECURITIES INC. ("Lender"),
such other "Borrowers" (as defined therein) which may from time to time become a
party thereto, and FIRST NATIONAL BANK OF BOSTON (the "Custodian"). Capitalized
terms not defined herein have the respective meanings assigned thereto in the
Custody Agreement.
By their signatures below, _____________, Lender, Borrower and the
Custodian agree that effective as of ___________ __, 199_, ______________ will
become a "Borrower" under the Custody Agreement with all the rights and
obligations of a Borrower thereunder on and after such date. By its signature
below, the Custodian agrees to provide written notice thereof to each other
Borrower under the Custody Agreement that effective as of the above-referenced
date ______________________ has complied with the provisions of Section __ of
the Custody Agreement and is a "Borrower" for all purposes thereunder.
IN WITNESS WHEREOF, the parties have signed this Borrower Addition
Agreement as of _____________ __, 1997.
IMC MORTGAGE COMPANY
By:___________________________________
Name:_________________________________
Title:________________________________
IMC CORPORATION OF AMERICA
By:___________________________________
Name:_________________________________
Title:________________________________
I-2
INDUSTRY MORTGAGE COMPANY, L.P.
By:___________________________________
Name:
Title:
IMC INVESTMENT CORP.
By:___________________________________
Name:
Title:
COREWEST BANC, INC.
By:___________________________________
Name:
Title:
FIRST NATIONAL BANK OF BOSTON
as Custodian
By:___________________________________
Name:
Title:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
I-3
