CUSTODY AGREEMENT
This CUSTODY AGREEMENT dated as of FEBRUARY 28, 2000 by and among
IMPAC WAREHOUSE LENDING GROUP, INC., (IWLG), a Delaware corporation, having an
address at 0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, XX 00000 ("Buyer"), Bankers Trust
Company, having an address at 0000 X. Xx. Xxxxxxx Xxxxx, Xxxxx Xxx, XX 00000,
("Custodian"), PMCC FINANCIAL CORPORATION AND PMCC MORTGAGE CORPORATION having
an address at 0 XXXXXXXXXX XXXXX, XXXXXX XXXXXXX, XXX XXXX 00000 ("Seller").
WITNESSETH:
WHEREAS, the Seller and the Buyer may, from time to time, enter into
transactions (each, a "Transaction") in which the Buyer agrees to purchase from
the Seller certain one-to-four-family residential mortgage loans (the "Mortgage
Loans"), with a simultaneous agreement by the Seller to repurchase such Mortgage
Loans on demand as provided in a Master Repurchase Agreement, dated as of
FEBRUARY 28, 2000 between the Seller and the Buyer (the "Master Repurchase
Agreement") and a Confirmation between the Seller and the Buyer (the
"Confirmation"; as to each Transaction, the related Confirmation and the Master
Repurchase Agreement are referred to collectively as the "Repurchase
Agreement");
WHEREAS, the Buyer has directed the Seller, and the Seller has agreed,
to deliver certain documents with. respect to the Mortgage Loans subject to each
Transaction to the Custodian, and the Custodian has agreed to take and maintain
possession of such documents in accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto agree as follows:
1. All capitalized terms not otherwise defined herein have the
respective meanings set forth in the Repurchase Agreement.
2. On or before the effective date for each Transaction (the "Purchase
Date"), the Seller shall deliver, or cause to be delivered, to the Custodian a
schedule of Mortgage Loans subject to such Transaction ("Mortgage Loan
Schedule"), and the Seller shall thereafter deliver, or shall cause to be
delivered, and shall release to the Custodian originals or copies, as allowed by
Buyer of the documents in accordance with the Master Repurchase Agreement
pertaining to each of the Mortgage Loans identified in the Mortgage Loan
Schedule, which documents the Custodian shall hold for the benefit of the Buyer,
its successors or assigns, as the owner thereof:
(i) the original note or other evidence of indebtedness (the
"Mortgage Note") of the obligor thereon (each such obligor,
a "Mortgagor"), endorsed to the order of or assigned to
Seller by the holder/payee thereof, without recourse, and
endorsed by Seller, without recourse, in blank;
(ii) the original mortgage, deed of trust or other instrument
(the "Mortgage") creating a first lien on the underlying
property securing the Mortgage Loan
(the "Mortgaged Property"), naming Seller as the "mortgagee"
or "beneficiary" thereof, and not name Seller as the
mortgagee/beneficiary, the Mortgage, together with an
instrument of assignment assigning the Mortgage,
individually or together with other Mortgages, to Seller and
bearing on the face thereof the address of Seller, and, in
either case, bearing evidence that such instruments have
been recorded in the appropriate jurisdiction where the
Mortgaged Property is located (or, in lieu of the original
Mortgage or the assignment thereof, a duplicate or together
with a certificate of either the closing attorney or an
officer of the title insurer that issued the related title
policy, or a certificate of receipt from the recording
office, certifying tath such copy or copies represent true
and correct copy(ies) of the original(s) and that such
original(s) have been or are currently submitted to be
recorded in the appropriate governmental recording office of
the jurisdiction where the Mortgaged Property is located);
(iii) an original assignment of Mortgage, in blank, which
assignment shall be in form and substance acceptable for
recording and, in the event that the Seller acquired the
Mortgage Loan in a merger, the assignment must be by
"[Seller], successor by merger to [name of predecessor]";
(iv) any intervening assignment of the Mortgage not included in
(ii) above, including any warehousing assignment;
(v) any assumption, modification, extension or guaranty
agreement;
(vi) Lender's title insurance policy, or, if such policy has not
been issued, a written commitment to interim binder issued
by the title insurance company evidencing that the required
title insurance coverage is in effect and unconditionally
guaranteeing the holder of the Mortgage Loan that the
lender's title insurance policy will be issued;
(vii) any instrument necessary to complete identification of any
exception set forth in the exception schedule in the title
insurance policy (e.g., map or plat, restrictions,
easements, sewer agreements, home association declarations,
etc.); and
(viii) if the Mortgage Note or any other material document or
instrument relating to the Mortgage Loan has been signed by
a person on behalf of the Mortgagor, the original power of
attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument
has been recorded, if so required, in the appropriate
jurisdiction where the Mortgaged Property is located (or, in
lieu thereof, a duplicate or conformed copy of such
instrument, together with a certificate of receipt from the
recording office, certifying that such copy represents a
true and complete copy of the original and that such
original has been or is currently submitted to be recorded
in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located).
From time to time, the Seller shall forward to the Custodian additional original
documents evidencing an assumption or modification of a Mortgage Loan approved
by the Seller. All documents held by the Custodian as to each Mortgage Loan
pursuant to this Section 2 are referred to herein as the "Custodian's Mortgage
File". On the respective Purchase Date for each Transaction, the Seller shall
deliver to the Buyer a Certificate of the Seller, in the form attached hereto as
Exhibit One, with respect to all of the Mortgage Loans and related documents
described in this Section 2 sold to the Buyer on such Purchase Date in
connection with such Transaction.
3. The Buyer hereby appoints the Custodian, in its independent corporate
capacity, as the custodian of the Buyer and any successor to or assignee of the
Buyer, and the Custodian hereby accepts and agrees to act as custodian for the
Buyer and any successor to or assignee of the Buyer in accordance with the terms
and conditions of this Agreement. With respect to each Custodian's Mortgage File
delivered to the Custodian, the Custodian is solely and exclusively the
custodian for the Buyer or its successor or assignee for all purposes
(including, but not limited to, the perfection of the security interest of the
Buyer in such Mortgage Loans to the extent that the Seller shall be deemed to
have pledged the Mortgage Loans to Buyer pursuant to Section 6 of the Repurchase
Agreement). The Custodian shall hold in its possession at 0000 Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, all Custodian's Mortgage Files
received by it from Seller from time to time for the sole and exclusive use and
benefit of the Buyer and the Buyer's successors and assignees as provided herein
and, except as otherwise expressly provided herein, shall make disposition
thereof only in accordance with the written instructions of the Buyer. The
Custodian shall segregate and maintain continuous custody of all documents
constituting the Custodian's Mortgage Files received by it in secure and
fireproof facilities, all in accordance with customary standards for such
custody.
4. When the Custodian has received from the Seller possession of each
Custodian's Mortgage File for the related Transaction, the Custodian shall
verify that:
(a) all documents required to be delivered to it pursuant to this
Agreement are in the Custodian's possession;
(b) such documents have been reviewed by the Custodian and appear
regular on their face and relate to the Mortgage Loans and
neither the Mortgage Note, the Mortgage nor the Assignment of
Mortgage contains evidence of any claims, liens, security
interests, encumbrances or restrictions on transfer;
(c) based only on the Custodian's examination of the foregoing
documents:
(i) the information set forth on the Mortgage Loan Schedule with
respect to each Mortgage Loan accurately reflects the
information contained in the documents contained in each
Custodian's Mortgage File as to, (A) the name of the
respective Mortgagor, (B) the address of the respective
Mortgaged Property and (C) the original principal amount of
the related Mortgage Note;
(ii) the Mortgage Note and the 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 the copies of the
Mortgage permitted under paragraph 2(a)(ii), that such
copies bear a reproduction of such signature or signatures;
(iii)the principal sum of the indebtedness secured by the
Mortgage is identical to the original principal of the
Mortgage Note;
(iv) if the Note does not name the "[Seller]" as the holder or
payee, the Mortgage Note bears the original endorsements
that complete the chain of ownership from the original
holder or payee to "[Seller]", and
(v) if the Mortgage does not name "[Seller]" as the mortgagee or
beneficiary, the original of the Assignment of Mortgage and
any intervening assignments of mortgage bear the original
signature purporting to be the signature of the named
mortgagee or beneficiary (and any other necessary party
including subsequent assignors) or in the case of copies
permitted under paragraph 2(a)(ii), that such copies bear a
reproduction of such signature or signatures and that the
Assignment of Mortgage and any intervening assignments of
mortgage complete the chain of title from the originator to
"[Seller]";
(d) each Mortgage Note has been endorsed as noted in paragraph
2(a)(i) herein and each Assignment of Mortgage has been completed
as noted in paragraph 2(a)(iii)herein; and
(e) the Lender's title insurance policy, or written commitment to
issue or interim binder for such policy, is for not less than the
original principal amount of the Mortgage Note and insures that
the Mortgage constitutes a first lien, senior in priority to all
other mortgages, deeds in trust, security interests and other
contractual liens.
In making such verification, the Custodian may rely conclusively on the Mortgage
Loan Schedule and the documents constituting the Custodian's Mortgage File, and
the Custodian shall have no obligation to independently verify time correctness
of such Mortgage Loan Schedule or any document. Upon completing such
verification, the Custodian shall advise the Buyer of its receipt of all such
Custodian's Mortgage Files and shall forward to the Buyer on the Purchase Date a
trust receipt in the form annexed hereto as Exhibit Two (the "Trust Receipt")
with respect to the Mortgage Loans (other than any Mortgage Loan paid in full or
any Mortgage Loan specifically identified on the Schedule of Exceptions attached
to the Trust Receipt as not covered by such Trust Receipt) listed on the
Mortgage Loan Schedule for such Transaction. If the Custodian determines from
such verification that any discrepancy or deficiency exists with respect to a
Custodian's Mortgage File, the Custodian shall note such discrepancy on the
Schedule of Exceptions attached to the Trust Receipt, and, upon time request of
the Seller, the Custodian shall deliver a copy of the Schedule of Exceptions to
xxxx Xxxxxx. During time life of the Mortgage Loans, in the event the Custodian
discovers any defect with respect to time Custodian's Mortgage File, the
Custodian shall give written specification of such defect to the Seller and the
Buyer.
Except as specifically provided above, the Custodian shall be under no duty to
review, inspect or examine such documents to determine that any of them are
enforceable or appropriate for their prescribed purpose.
5. Each Trust Receipt , upon initial issuance or reissuance upon transfer,
shall be dated the date of issuance thereof and shall evidence the receipt and
possession of the Custodian's Mortgage File by the Custodian on behalf of the
holder of the Trust Receipt and time holder's right to possess the Custodian's
Mortgage File with respect to which that Trust Receipt is issued. Prior to due
surrender of a Trust Receipt pursuant to Paragraph 6, the Custodian shall treat
the individual person or entity in whose name any Trust Receipt is registered as
the individual person or entity entitled to possession of time Custodian's
Mortgage File evidenced by such Trust Receipt for all purposes whatsoever,
subject to the terms of this Agreement, and the Custodian shall not be affected
by notice of any facts to the contrary. No Trust Receipt shall be valid for any
purpose unless substantially in the form set forth in Exhibit Two to this
Agreement and executed by manual signature of an authorized officer of the
Custodian, and such signature upon any Trust Receipt shall be conclusive
evidence, and the only evidence, that such Trust Receipt has been duly delivered
under this Agreement. Trust Receipts bearing time manual signatures of
individua1s who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Custodian shall bind the Custodian, notwithstanding
that such individuals or any of them have ceased to be so authorized prior to
the delivery of those Trust Receipts. Each Trust Receipt shall have attached
thereto a schedule, in the format of the Mortgage Loan Schedule, identifying the
Mortgage Loans for which the Trust Receipt is issued. The Custodian shall keep a
register in which the Custodian shall provide, for the registration of transfers
of Trust Receipts as herein provided and in which it shall record the name and
address of the person to whom each Trust Receipt is issued. In the event that
the Trust Receipt is lost, stolen, mutilated or destroyed, time Custodian shall
issue a new Trust Receipt to the registered holder of such lost., stolen,
mutilated or destroyed Trust Receipt upon receiving a reasonably satisfactory
commitment from such holder to indemnify the Custodian and hold the Custodian
harmless in respect of time issuance of such new Trust Receipt.
6. Upon written receipt of written directions from the Buyer at any time,
and upon the prior tender by the Buyer of the applicable Trust Receipt, the
Custodian shall deliver all or any portion of the Custodian's Mortgage Files
held by it or the Buyer, or to such other party as the Buyer may direct, and to
the place indicated in any such written direction from the Buyer and shall
deliver to the Buyer a new Trust Receipt with respect to the Custodian's
Mortgage Files retained by the Custodian. Upon receipt by the Custodian of
written notification from the Buyer that the Buyer has sold all or a portion of
the Mortgage Loans, which notification shall state the name and address of the
Buyer and the Loans delivered to the Buyer, the Custodian shall change its
records to reflect that such Buyer is the owner of such Mortgage Loans and the
related Custodian's Mortgage Files and shall immediately, upon the direction of
the Buyer, either deliver the applicable Custodian's Mortgage Files to such
Buyer or issue a Trust Receipt reflecting all Mortgage Loans evidenced by the
surrendered Trust Receipts with respect to which the Custodian still holds the
related Custodian's Mortgage Files on behalf of the Buyer. The Buyer shall
deliver to the Seller a copy of any written requests made pursuant to this
Paragraph 6. Every Trust Receipt presented or surrendered for transfer shall be
duly endorsed by the holder thereof, or be accompanied by a written instrument
of transfer, duly executed by the holder thereof and such holder's prospective
transferee. No service charge against the presenter of a Trust Receipt shall be
made for any registration or transfer of any Trust Receipts, but the Custodian
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer of any Trust Receipt, which
shall be paid by the transferee. Each Trust Receipt surrendered for registration
of transfer shall be canceled by the Custodian. Any Buyer of a Mortgage Loan
shall succeed to all the rights and obligations of the Buyer under this
Agreement with respect to such Mortgage Loans and the related Custodian's
Mortgage File.
7. In the event that any specific Mortgage Loan document is required by the
Seller, either (a) because such Mortgage Loan has been paid in full and is to be
released by the Seller, in its capacity as the servicer to the maker of the
respective Mortgage Note, or (b) to facilitate enforcement and collection
procedures with respect to any Mortgage Note, the Seller, in its capacity as the
servicer shall send to time Custodian a certificate in the form of Exhibit
Three. The Custodian shall promptly send a copy of such certificate to the
Buyer, and in the event that Buyer consents to the release of such documents,
the Buyer will return such copy to the Custodian with such consent indicated
thereon. Notwithstanding anything to time contrary herein, the Custodian shall
in no event release to the Buyer any documents contained in a Custodian's
Mortgage File without the written authorization of the Buyer. Any Trust Receipt
issued while any documents are outstanding with the Seller, in its capacity as
the servicer shall reflect that the Custodian holds such documents as custodian
for the Buyer pursuant to this Agreement, but the Schedule of Exceptions shall
specify that time Custodian has released such documents to the Seller, in its
capacity as the servicer pursuant to this paragraph. All documents so released
to the Seller, in its capacity as the servicer shall be held by it in trust for
the benefit of the Buyer in accordance with Paragraph 9(b) of the Repurchase
Agreement. In the case of documents released pursuant to clause (b) above, xxxx
Xxxxxx shall return to the Custodian the Custodian's Mortgage File, or such
other documents that have been released to the Seller, when the Seller's need
therefor in connection with such enforcement or collection procedures no longere
exists, unless the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certification to this effect from the Seller to the Custodian in
the form annexed hereto as Exhibit Three, the Seller's receipt shall be released
by the Custodian to the Seller, and the Custodian shall thereupon reflect any
such liquidation on the list of Mortgage Loans maintained by it pursuant to
Paragraph i3 of this Agreement.
8. It is understood that Custodian will charge such fees for its services
under this Agreement as are set forth in a separate agreement between time
Custodian and xxxx Xxxxxx, time payment of which, together with the Custodian's
expenses in connection herewith, shall be solely the obligation of the Seller.
9. The Buyer, with or without cause, may (i) require the Custodian to
complete the endorsements on the Mortgage Notes, and complete thee Assignments
of Mortgages and/or (ii) upon thirty (30) days written notice, remove and
discharge the Custodian, or any successor Custodian thereafter appointed, from
the performance of its duties under this Agreement by written notice from the
Buyer to the Custodian or the successor Custodian, with a copy of such notice to
the Seller. Having given notice of such removal, the Buyer shall promptly
appoint by written instrument a successor Custodian to act on behalf of the
Buyer. One original counterpart of such instrument shall be delivered to the
Buyer, one copy shall be delivered to the Seller and one copy shall be delivered
to time successor Custodian. In time event of any such removal, the Custodian
shall promptly transfer to time successor Custodian, as directed by the Buyer,
all of the Custodian's Mortgage Files being administered under this Agreement
and/or shall complete the Assignments of Mortgage and endorse the Mortgage Notes
if, and in the form, directed by the Buyer. In the event of any such
appointment, the Seller shall not be
responsible for any fees of the successor Custodian in excess of the fees
formerly paid to the Custodian.
10. The Custodian may terminate its obligations under this Agreement upon
at least sixty (60) days written notice to the Seller and the Buyer. In the
event of such termination, the Seller shall appoint a successor Custodian,
subject to approval by the Buyer. If the Seller is unable to appoint a successor
Custodian within a reasonable period of time, the Buyer shall appoint a
successor Custodian. The payment of such successor Custodian's fees and expenses
shall be time sole responsibility of the Buyer. Upon such appointment, the
Custodian shall promptly transfer to the successor Custodian, as directed, all
Custodian's Mortgage Files being administered under this Agreement and shall
complete the Assignments of Mortgage and endorse the Mortgage Notes as, and if,
requested by the Buyer. The Custodian's obligations hereunder shall not in any
event be terminated until time Custodian's Mortgage Files have been delivered to
time successor Custodian or to the Buyer.
11. Upon reasonable prior written notice to the Custodian, the Buyer and
its agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine the Custodian's Mortgage Files.
12. The Custodian shall, at its own expense, maintain at all times during
time existence of this Agreement and keep in full force and effect (a) fidelity
insurance, (b) theft of documents insurance, (c) forgery insurance and (d)
insurance covering the risk of errors and omissions. All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks that act as custodian in similar
transactions. A certificate of the respective insurer as to each such policy
shall be furnished to the Buyer, upon request, containing time insured's
statement or endorsement that such insurance shall not terminate prior to
receipt by the Buyer, by registered mail, of ten (10) days notice thereof.
13. Upon the request of the Buyer at any time, the Custodian shall provide
to the Buyer a list of all time Mortgage Loans for which Custodian holds a
Custodian's Mortgage File pursuant to this Agreement and a list of documents
missing from each Custodian's Mortgage File. Such list may be in the form of a
copy of the Mortgage Loan Schedules with manual deletions to specifically denote
any Mortgage Loans paid off, liquidated or repurchased since the date of this
Agreement.
14. Upon the request of the Buyer and at the cost and expense of the Buyer,
the Custodian shall provide the Buyer with copies of the Mortgage Notes,
Mortgages, Assignments of Mortgage and other documents contained in the
Custodian's Mortgage File relating to one or more of the Mortgage Loans.
15. By execution of this Agreement, the Custodian warrants that it does not
currently hold, and during the existence of this Agreement shall not hold, any
adverse interest, by way of security or otherwise, in any Mortgage Loan, and
hereby waives amid releases any such interest that it may have in any Mortgage
Loan as of time date hereof. Notwithstanding any other provisions of this
Agreement and without limiting the generality of the foregoing, the Custodian
shall not at any time exercise or seek to enforce any claim, right or remedy,
including any statutory or common law rights of set-off, if any, that time
Custodian may otherwise have against all or any part of a Custodians Mortgage
File, Mortgage Loan or proceeds of either.
15A. Custodian represents and warrants to, and covenants that:
(a) The Custodian is (i) a New York corporation duly organized,
validly existing and in good standing under the laws of New York 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 time terms of this Agreement;
(b) 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, or (ii) violate, contravene or create a default
under any charter document or bylaw of the Custodian or, to the best of
time 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;
(c) The execution and delivery of this Agreement by time 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; and
(d) This Agreement, and each 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 (1) as the enforcement
thereof may be limited by applicable debtor relief laws amid (ii) that
certain equitable remedies may not be available regardless of whether
enforcement is sought in equity or law.
16. All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given when delivered to time other party
at time address shown on time first page hereof, or such other address as may
hereafter be furnished to the other party by like notice.
17. Each authorized representative (an "Authorized Representative") of the
Buyer is authorized to give and receive notices, requests amid instruction amid
to deliver certificates amid document in connection with this Agreement on
behalf of the Buyer and the specimen signature for each such Authorized
Representative of the Buyer initially authorized hereunder is set forth on
Exhibit Four hereof. From time to time, the Buyer shall deliver to the Custodian
a revised Exhibit Four, reflecting changes in the information previously given,
but time Custodian shall be entitled to rely conclusively on the last Exhibit
Four until receipt of a superseding Exhibit Four. Each Authorized Representative
of the Seller is authorized to give and receive notices, requests and
instructions and to deliver certificates and documents in connection with this
Agreement on behalf of the Seller and the specimen signature for each such
Authorized Representative of the Seller initially authorized hereunder is set
forth on Exhibit Five hereof. From time to time, the Seller shall deliver to the
Custodian a revised Exhibit Five, reflecting changes in the information
previously given, but the Custodian shall be entitled to rely con-
clusively on the last Exhibit Five until receipt of a superseding Exhibit Five.
18. The Seller shall indemnify and hold the Custodian and its directors,
officers, agents and employees harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, except for any such resulting from the fraud or
willful misconduct of the Buyer or conduct in violation of this Agreement of any
kind or nature whatsoever that maybe imposed on, incurred by, or asserted
against it or them hereunder and under the Repurchase Agreement.
19. The duties and obligations of the Custodian shall be determined solely
by the express provisions of this Agreement. The Custodian shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement or as set forth in a written amendment to this
Agreement executed by the parties hereto or their successors or assigns. The
Custodian shall not assign, transfer, pledge or grant a security interest in any
of its rights, benefits or privileges hereunder, nor shall the Custodian
delegate or appoint any other person or entity to perform or carry out any of
its duties, responsibilities, or obligations under this Agreement. Any act or
instrument purporting to effect any such assignment, transfer, pledge, grant,
delegation or appointment shall be void. No representations, warranties,
covenants (other than those expressly made by the Custodian of this Agreement)
or obligations of the Custodian shall be implied with respects to this Agreement
or the Custodian's services hereunder. Without limiting the generality of the
foregoing, the Custodian:
(a) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed in writing by the parties
hereto and shall use the same degree of care and skill as is reasonably expected
of financial institutions acting in comparable capacities;
(b) will be regarded as making no representations and having no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any
certificates or Mortgage Loans represented thereby, and will not be required to
and will not make any representations as to the validity, value or genuineness
of Mortgage Loans;
(c) shall not be obligated to take any legal action hereunder that
might in its judgment involve any expense or liability unless it has been
furnished with reasonable indemnity;
(d) may rely on and shall be protected in acting in good faith upon
any certificate, instrument opinion, notice, letter, telegram or other document,
or any security, delivered to it and in good faith believed by it to be genuine
and to have been signed by the proper party or parties;
(e) may rely on and shall be protected in acting in good faith upon
time written instructions of the Seller and such employees and representatives
of the Seller as the Seller may hereinafter designate in writing;
(f) may consult counsel satisfactory to it (including counsel for the
Seller and the Buyer) and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered, or
omitted by it hereunder in good faith amid in furtherance of its duties
hereunder, in accordance with time opinion of such counsel;
(g) shall not be liable for any error of judgment, or for any act done
or step taken or omitted by it, in good faith, or for any mistake of fact or
law, or for any timing that it may do or refrain from doing in connection
therewith except in the case of negligent performance or omission; and
(h) may execute any of the trusts or powers hereunder or perform any
duties hereunder either, directly or through agents or attorneys, provided,
however, that the execution of such trusts or powers by any such agents or
attorneys shall not diminish, or relieve time Custodian for, responsibility
therefor to time same degree as if the Custodian itself had executed such trusts
or powers.
20. For the purpose of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be. an original, and together
shall constitute and be one and the same instrument.
21. The Buyer shall have the right, without time consent of the Custodian
or xxxx Xxxxxx, to assign, in. whole or in part, its interests under this
Agreement in all of the Mortgage Loans subject to any Transaction, and designate
any person to exercise any rights of the Buyer, hereunder, and the assignee or
designee shall accede to the rights and obligations hereunder of the Buyer with
respect to such Mortgage Loans. All references to the Buyer shall be deemed to
include its assignee or designee. In connection with any such assignment, The
Custodian may require dial arrangements reasonably satisfactory to it be made
for the exchange of previously executed and outstanding Trust Receipts for a
Trust Receipt representing such assignment.
22. This Agreement shall terminate with respect to any Transaction upon the
earlier of (a) the repurchase of all of the Mortgage Loans subject to such
Transaction by the Seller pursuant to the Repurchase Agreement, which repurchase
shall be evidenced by a notice from the Buyer to the Custodian stating that
beneficial ownership of the Mortgage Loans has been transferred to the Seller,
or (b) the Buyer's election to obtain possession the Mortgage Loans subject to a
Transaction following an Event of Default (as defined in the Repurchase
Agreement) by the Seller, which election shall be evidenced by a notice from the
Buyer to the Custodian stating that the Seller is in default under the
Repurchase Agreement, a copy of which shall be simultaneously delivered to the
Seller, and delivery of the Custodian's Mortgage Files pursuant to the Buyer's
instructions.
23. Neither the failure nor any delay on the part of any party hereto to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or any other right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party or parties purportedly granting such waiver.
24. The provisions of this Agreement are independent of .and severable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of time fact that for any reason any oilier provision or
provisions may be invalid or unenforceable in whole or in part.
25. This Agreement constitutes the entire agreement and understanding of
the parties with respect to the matters and transactions contemplated by this
Agreement and supersedes any
prior agreement and understandings with respect to those matters and
transactions.
26. This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
27. This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any party at time closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. Any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further of
such reproduction shall likewise be admissible in evidence.
28. The exhibits to this Agreement are hereby incorporated and made a part
hereof amid are an integral part of this Agreement.
29. For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this agreement have tile meanings
assigned to them in this Agreement and include the plural as
well as the singular, and the use of any gender herein si
all be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in
the same Section in which the reference appears, and this
ru1e shall also apply to Paragraphs and other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to
any particular provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
IN WITNESS WHEREOF, Seller, Buyer and Custodian have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the date first written above.
PMCC FINANCIAL CORPORATION AND PMCC
MORTGAGE CORPORATION
as Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx x. Xxxxxxx
--------------------------------
Title: CEO
--------------------------------
IMPAC WAREHOUSE LENDING GROUP, INC.
as Buyer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
BANKERS TRUST
COMPANY,
as Custodian
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
EXHIBIT ONE
CERTIFICATE OF SELLER
I, XXXXX X. XXXXXXX hereby certify that I am the duly elected
CHIEF EXECUTIVE OFFICER of PMCC FINANCIAL CORPORATION AND PMCC MORTGAGE
CORPORATION ( the "Seller"). All terms used herein and not otherwise defined
herein shall have the meaning ascribed to such terms in the Custody Agreement,
dated as of FEBRUARY 28, 2000 among the Seller Impac Warehouse Lending Group,
Inc. (the "Buyer"), Bankers Trust Company , as custodian.
The undersigned hereby represents, warrants and covenants on
behalf of the Seller that, pursuant to the sale of the mortgage loans set forth
on Annex 1 hereto (the "Mortgage Loans") by the Seller to Buyer pursuant to a
Master Repurchase Agreement, dated as of FEBRUARY 28, 2000 between the Seller
and the Buyer, the Seller sells, transfers, assigns, sets over and otherwise
conveys to Buyer all of its might (including the power to convey title thereto),
title and interest in and to each document held by or on behalf of the Seller
with respect to earth Mortgage Loan. Any such documents that have not been
delivered to the Custodian shall be held by: the Seller, in trust for the
benefit of the Buyer and shall be delivered to the Buyer or its assignee or
designee upon demand.
IN WITNESS WHEREOF, I have hereunto signed my name, this 3rd day
of March, 2000.
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ANNEX 1
MORTGAGE LOAN SCHEDULE
ANNEX 2
(1) the original note or other evidence of indebtedness (the "Mortgage Note")
of the obligor thereon (each such obligor, a "Mortgagor").
(2) the original mortgage, deed of trust or other instrument (the "Mortgage")
creating a first lien on the underlying property securing the Mortgage Loan
(the "Mortgaged Property").
(3) the original assignment of the Mortgage.
(4) any intervening assignment of the Mortgage, including any warehousing
assignment.
(5) any assumption, modification, extension or guaranty agreement.
(6) any lender's title insurance policy and any written commitment or interim
binder issued by the title insurance company evidencing that the required
title insurance coverage is in effect and unconditionally guaranteeing the
holder of the Mortgage Loan that the lender's title insurance policy will
be issued.
(7) airy instrument necessary to complete identification of any exception set
forth in the exception schedule in the title insurance policy (e.g., map or
p1at, restrictions, easements, sewer agreements, home association
declarations, etc.).
(8) any survey of the Mortgaged Property.
(9) any hazard insurance policy or flood insurance policy, with extended
coverage of the hazard insurance policy.
(10) any Mortgage Loan closing statement (Form HUD- 1) and any other
truth-in-lending, real estate settlement procedure forms or other
disclosure statements required by law.
(11) any residential loan application.
(12) any verification of employment and income.
(13) any verification of acceptable evidence of source and amount of
downpayment.
(14) any credit report on the borrower under the Mortgage Loan.
(15) any residential appraisal report.
(16) any photograph of the Mortgaged Property.
(17) any power of attorney or other instrument that authorized and empowered any
person other than Mortgagor to sign the Mortgage Note or Mortgage or any
other material document or instrument relating to the Mortgage Loan not
signed by the Mortgagor.
(18) any tax receipts, insurance premiums, ledger sheets, payment records,
insurance claim files and correspondence, current and historical
computerized data files, underwriting standards used for origination and
all other papers and records developed or originated by the Seller, any
servicer or others, required to document the Mortgage Loan or to service
the Mortgage Loan.
EXHIBIT TWO
TRUST RECEIPT
TRANSACTION NUMBER ______________
2000
---------------, -----
To: [ BUYER]
Reference is made to the Custody Agreement among Impac Warehouse
Lending Group, Inc. (the "Buyer"),________________________ (the "Seller") and
________________________, as custodian (the "Custodian") dated as of __________
1, 2000 (the "Custody Agreement"), pursuant to which the Seller has delivered to
the Custodian, with respect to each Mortgage Loan set forth on Schedule A hereto
(the "Mortgage Loan Schedule"), the documents set forth in Section 2 of the
Custody Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan
Schedule and except as otherwise noted on the Schedule of Exceptions set forth
on Schedule B hereto, the Custodian confirms that (1) the Custodian has received
all of the documents required to be delivered to the Custodian pursuant to
Section 2 of the Custody Agreement, (2) the Custodian has reviewed each
Custodian's Mortgage File in accordance with Section 4 of the Custody Agreement,
and the documents contained in each Custodian's Mortgage File conform to the
requirements set forth in Section 4 of the Custody Agreement, and (3) the
Custodian has physical possession of the documents in each Custodian's Mortgage
File and will continue to hold each Custodian's Mortgage File as bailee of and
agent for, and for the sole and exclusive use and benefit of, the addressee of
this Trust Receipt, until such addressee directs Custodian to the contrary in
accordance with the Custody Agreement.
All terms used herein and not otherwise defined herein shall have
the respective meaning ascribed to such term in the Custody Agreement.
[CUSTODIAN]
By:_______________________________
Name:_____________________________
Title:____________________________
SCHEDULE A
MORTGAGE LOAN SCHEDULE
SCHEDULE B
SCHEDULE OF EXCEPTIONS
EXHIBIT THREE
REQUEST FOR RELEASE OF DOCUMENTS
TO: [CUSTODIAN]
Re: Custody Agreement, dated as of __________________ 1, 2000, among
Impac Warehouse Lending Group, Inc. ("Buyer"),
____________________________________ ("Seller"), and
________________________ as custodian ("Custodian")
In connection with the administration of the Mortgage Loans held by
you as Custodian for the Buyer pursuant to the above-captioned Custody
Agreement, we request the release, and hereby acknowledge receipt, of the
(Custodian's Mortgage File /[specify documents]) for the Mortgage Loan described
below, for the reason indicated.
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
______ 1. Mortgage Loan Paid in Full
(Seller, in its capacity as servicer, hereby certifies that all
amounts received in connection therewith will be held in trust
for the Buyer as provided in the Master Repurchase Agreement,
dated as of _______ 1, 2000 between the Seller and the Buyer (the
"Repurchase Agreement").
_______2. Mortgage Loan Liquidated by ______________
(Seller, in its capacity as servicer, hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have been
finally received and will be held in trust for the Buyer as
provided in the Repurchase Agreement.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain) __________________________
__________________________
If box 1 or 2 above is checked, and if all or part of the Custodian's
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your possession
relating to the above specified Mortgage Loan.
If box 3 or 4 above is checked, upon our return of all of the above
documents to you as Custodian, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
______________________________,
as Servicer
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
Release of documents consented to:
[BUYER]
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
Documents returned to Custodian:
[CUSTODIAN]
By:_____________________________
Name:___________________________
Title:__________________________
Date:___________________________
EXHIBIT FOUR
AUTHORIZED OFFICERS OF THE BUYER
Name Specimen Signature
________________________________ ______________________________
________________________________ ______________________________
________________________________ ______________________________
EXHIBIT FIVE
AUTHORIZES OFFICERS OF THE SELLER
Name Specimen Signature
________________________________ _________________________________
________________________________ _________________________________
________________________________ _________________________________
