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EXHIBIT 10.3
CUSTODIAL AGREEMENT
among
[EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC
EQUICREDIT CORPORATION/ALA. & MISS.]
Originators
EQUICREDIT CORPORATION OF AMERICA
REPRESENTATIVE AND SERVICER
EQCC RECEIVABLES CORPORATION
EQCC ASSET BACKED CORPORATION
Depositors
[TRUSTEE]
Trustee
and
[CUSTODIAN]
Custodian
Dated as of _____, 199_
EQCC HOME EQUITY LOAN TRUST 199_-_
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions...............................................................2
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.01 Appointment as Custodian..................................................2
Section 2.02 Maintenance of Office.....................................................2
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.01 Transfer of Mortgage Loans; Delivery of Documents.........................2
Section 3.02 Trust Receipt and Certification...........................................3
Section 3.03 Release of Mortgage Files.................................................4
Section 3.04 Purchase; Payment In Full.................................................4
Section 3.05 Other Duties of Custodian.................................................4
Section 3.06 Access to Records.........................................................5
Section 3.07 Instructions; Authority to Act............................................5
ARTICLE IV
OWNERSHIP AND TRANSFER OF MORTGAGE LOANS
Section 4.01 Transfer of Mortgage Loans................................................5
Section 4.02 Substitution and Purchase of Mortgage Loans...............................6
Section 4.03 No Service Charge for Transfer of Mortgage Loans..........................6
Section 4.04 Defeasance................................................................6
ARTICLE V
CUSTODIAN
Section 5.01 Representations, Warranties and Covenants of Custodian....................7
Section 5.02 Charges and Expenses......................................................8
Section 5.03 No Adverse Interests......................................................8
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Section 5.04 Inspections...............................................................8
Section 5.05 Insurance.................................................................8
Section 5.06 Limitation of Liability...................................................9
Section 5.07 Indemnification...........................................................9
Section 5.08 Further Rights of Custodian...............................................9
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment................................................................10
Section 6.02 Governing Law............................................................10
Section 6.03 Notices..................................................................10
Section 6.04 Severability of Provisions...............................................10
Section 6.05 No Partnership...........................................................11
Section 6.06 Termination of Agreement.................................................11
Section 6.07 Counterparts.............................................................11
Section 6.08 Assignment...............................................................11
Section 6.09 Headings.................................................................11
Section 6.10 Advice of Counsel........................................................11
Section 6.11 Third Party Beneficiary..................................................11
Section 6.12 Resignation of Custodian.................................................11
Section 6.13 Limitation of Liability of Trustee.......................................12
EXHIBIT A Trust Receipt and Certification........................................A-1
EXHIBIT B Request for Release of Documents.......................................B-1
EXHIBIT C List of Originators....................................................C-1
EXHIBIT D Transfer Certificate...................................................D-1
SCHEDULE I Mortgage Loan Schedule
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CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of _____, 199_, by and among THE
ORIGINATORS LISTED ON EXHIBIT C HERETO (collectively, the "Originators"),
EQUICREDIT CORPORATION OF AMERICA, as Representative (the "Representative") and
as Servicer (the "Servicer"), EQCC RECEIVABLES CORPORATION and EQCC ASSET
BACKED CORPORATION (collectively, the "Depositors"), [TRUSTEE], as Trustee
under the Pooling and Servicing Agreement (the "Trustee") and [CUSTODIAN], as
Custodian (the "Custodian").
RECITALS
WHEREAS, the Originators collectively are the owners of the Mortgage
Loans.
WHEREAS, pursuant to the Transfer Agreement, each Originator will
transfer its related Mortgage Loans to one of the Depositors.
WHEREAS, pursuant to the Pooling and Servicing Agreement, each
Depositor will transfer its related Mortgage Loans acquired pursuant to the
Transfer Agreement to the Trustee for the benefit of the Certificateholders.
WHEREAS, during such time as the Depositors or the Trustee holds the
Mortgage Loans, such Person or Persons shall be referred to herein as the
"Mortgage Holder," and the Custodian shall hold all Mortgage Loans as bailee of
and agent for the benefit of each Depositor and the Trustee (for the benefit of
the Certificateholders) during such time as such Person is a Mortgage Holder.
References in this Agreement to the Mortgage Holder, when referring to
transfers or possession of, or security interests in, Mortgage Loans, shall
refer to Custodian, in its capacity as custodian for the benefit of such
Mortgage Holder.
WHEREAS, in connection with the foregoing, the parties hereto desire
to provide for the custody and management of the Mortgage Loans which become
subject to these transfers of Mortgage Loans (each, a "Transfer").
WHEREAS, Custodian is a financial institution regulated by the
Comptroller of the Currency of the United States.
WHEREAS, each Originator, each Depositor and the Trustee during such
time as such Person is a Mortgage Holder desires to have Custodian (i) take
possession of the Mortgage Notes and the Mortgages related to the Mortgage
Loans, along with certain other documents specified in this Agreement (the
"Collateral"), as the custodian for, and bailee of, such Mortgage Holder in
accordance with the terms and conditions of this Agreement, and (ii) retain
possession of the Mortgage Notes and Mortgages and such other documents as
custodian for and bailee of the Trustee. Custodian is willing and able to
perform the duties and obligations of a custodian and bailee as set forth
herein.
WHEREAS, Servicer will act as servicer of the Mortgage Loans pursuant
to the Pooling and Servicing Agreement.
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Originators, the Representative, the
Servicer, the Depositors, the Trustee and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
assigned them in Article I of the Pooling and Servicing Agreement dated as of
_____, 199_ (the "Pooling and Servicing Agreement") among the Depositors, the
Trustee and the Servicer. All references in this Agreement to Articles,
Sections, Subsections and Exhibits are to the same contained in or attached to
this Agreement unless otherwise specified. All terms defined in this Agreement
shall have the defined meanings when used in any certificate, notice or other
document made or delivered pursuant hereto unless otherwise defined therein.
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.01 Appointment as Custodian. Subject to the terms and
conditions hereof, the Depositors and the Trustee (for the benefit of the
Certificateholders), as their interests may appear, hereby appoint [Custodian],
and [Custodian], hereby accepts such appointment, as Custodian to maintain
custody of the Mortgage Files during such time as each such Person is a
Mortgage Holder. The Servicer shall be liable for all of the Custodian's fees
and expenses under this Agreement.
Section 2.02 Maintenance of Office. The Custodian agrees to maintain
each Mortgage File identified in Section 2.04 of the Pooling and Servicing
Agreement and Section 2.04 of the Transfer Agreement (a) initially at its
office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and (b) then
at such of its other offices as Custodian shall designate from time to time
after giving the Originators, the Depositors, the Trustee and the Certificate
Insurer 30 days prior written notice.
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.01 Transfer of Mortgage Loans; Delivery of Documents. Before
a mortgage loan shall become a Mortgage Loan subject to this Agreement, the
Originators shall deliver, or cause to be delivered, to Custodian, the Mortgage
File for such Mortgage Loan referred to in Section 2.04 of the Transfer
Agreement. Until the Closing Date and the occurrence of the applicable initial
Transfer described below, the Custodian shall hold the Mortgage Loans
(including the Mortgage Files) as custodian and bailee for the Originators.
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On the Closing Date, the Originators shall deliver to the Custodian a
Transfer Certificate in the form attached hereto as Exhibit D evidencing the
Transfer by the Originators to the Depositors of the Mortgage Loans pursuant to
the Transfer Agreement. Upon receipt of any such Transfer Certificate duly
executed by the Originators, the Custodian shall issue to the Depositors a
Trust Receipt and Certification (the "Depositors' Trust Receipt"), as described
in Section 3.2 below.
On the Closing Date, upon receipt of the Depositors' Trust Receipt,
the Depositors shall deliver to the Custodian a Transfer Certificate in the
form attached hereto as Exhibit D evidencing the Transfer by the Depositors to
the Trustee (for the benefit of the Certificateholders) of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement, together with the Depositor's
Trust Receipt. Upon receipt of a Transfer Certificate duly executed by the
Depositors and the Depositor's Trust Receipt, the Custodian shall issue to the
Trustee a Trust Receipt and Certification (the "Trustee's Trust Receipt"), as
described in Section 3.2 below, and shall cancel the Depositor's Trust Receipt.
Promptly upon the occurrence of the Recordation Trigger, the Custodian shall
forward the Assignments of Mortgage and Reassignments of Assignments of
Beneficial Interest to the Servicer, whereupon, the Servicer shall (a) cause
the Assignments of Mortgage and Reassignments of Assignments of Beneficial
Interest to be recorded in the name of the Trustee (for the benefit of the
Certificateholders) in accordance with Section 2.04 of the Pooling and
Servicing Agreement and (b) return the acknowledgment copies of such
Assignments of Mortgage and Reassignments of Assignments of Beneficial Interest
to the Custodian immediately upon the Servicer's receipt thereof.
Custodian hereby acknowledges receipt of the Transfer Agreement and
the Pooling and Servicing Agreement. Custodian further acknowledges that, on
the Closing Date and pursuant to this Agreement, the Transfer Agreement and the
Pooling and Servicing Agreement, Custodian will be given possession of the
Mortgage Files relating to the Mortgage Loans, each of which Mortgage Loans
will be described specifically on the Mortgage Loan Schedule, a copy of which
will be delivered to Custodian simultaneously with the delivery of the Mortgage
Files relating thereto. On and after the Closing Date and the completion of the
Transfers described above, and so long as this Agreement shall remain in
effect, Custodian shall hold the Mortgage Loans and other Collateral now and
hereafter, from time to time, in its custody or control as custodian for and
bailee of the Trustee, as trustee for the benefit of the Certificateholders,
unless and until released in accordance with the Pooling and Servicing
Agreement, in which event, Custodian shall hold the Mortgage Files relating to
the Mortgage Loans and other Collateral as agent, trustee and bailee for the
benefit of the applicable Mortgage Holder.
Section 3.02 Trust Receipt and Certification. Upon delivery to
Custodian of the Mortgage Files, as specified in Section 3.1, Custodian shall
review the same on account of the Depositors and the Trustee in accordance with
the terms of Section 2.05(a) of the Transfer Agreement and Section 2.06(a) of
the Pooling and Servicing Agreement and (subject to Section 4.1 hereof) shall
provide to the Originators, the Depositors and the Trustee, as the case may be,
with a copy to the Certificate Insurer, a receipt indicating that (i) all the
documents in the Mortgage Files required to be delivered under Section 3.1
(being the documents described in Section 2.04 of the Transfer Agreement, and
Section 2.04 of the Pooling and Servicing Agreement) have been delivered
(subject to any exceptions noted in the related exception report
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referred to in such receipt) and (ii) Custodian holds such documents on behalf
of the applicable Mortgage Holder pursuant to this Agreement (the "Mortgage
Receipt"). Upon consummation of a Transfer in accordance with Article IV
hereof, Custodian shall, with respect to the Mortgage Loans transferred to the
applicable Mortgage Holder in connection with the applicable Transfer, as
described in Section 3.1 hereof, number, execute and deliver to the applicable
Mortgage Holder (with a copy to the Originators and the Certificate Insurer)
one or more certifications (each, a "Trust Receipt and Certification") in the
form attached hereto as Exhibit A. Upon issuance of a Trust Receipt and
Certification with respect to any Transfer, the Mortgage Receipt relating to
such Mortgage Loans previously delivered shall be deemed cancelled with respect
to such Mortgage Loans.
If recordation of any Assignment of Mortgage or Reassignment of
Assignment of Beneficial Interest is required after the occurrence of a
Recordation Trigger, upon delivery of such Assignment of Mortgage or
Reassignment of Assignment of Beneficial Interest to the Custodian as set forth
in Section 2.06(d) of the Pooling and Servicing Agreement, the Custodian shall
review the Assignment of Mortgage or Reassignment of Assignment of Beneficial
Interest to confirm the information set forth therein, shall notify the Trustee
of any defect therein and shall otherwise take such actions as may be required
under Section 2.06(d).
Section 3.03 Release of Mortgage Files. From time to time and as
provided in the Pooling and Servicing Agreement, Custodian is hereby
authorized, upon written request of Servicer in the form annexed hereto as
Exhibit B (which written request may be transmitted by electronic means
containing electronic facsimile signature in a manner mutually agreeable to the
Servicer and the Custodian), to release to Servicer the Mortgage File related
to any Mortgage Loan identified in such request to Servicer. All Mortgage Files
so released to Servicer shall be held by it in trust for the benefit of the
Trustee (for the benefit of the Certificateholders). Servicer shall return the
Mortgage File to Custodian when Servicer's need therefor in connection with
such foreclosure or repossession no longer exists, unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certification to this
effect from Servicer to Custodian in the form annexed hereto as Exhibit B, the
related Mortgage File shall be released by Custodian to Servicer, and Custodian
shall thereupon reflect any such liquidation on the related Mortgage.
Section 3.04 Purchase; Payment In Full. Upon the purchase or
substitution of any Mortgage Loan pursuant to Section 2.06 or 3.03 of the
Pooling and Servicing Agreement or Section 2.06 or 3.03 of the Transfer
Agreement, or upon the payment in full of any Mortgage Loan, which shall be
evidenced by Custodian's receipt of the request for release in the form annexed
hereto as Exhibit B, Custodian shall promptly release the related Mortgage File
to Servicer and the interest in such Mortgage Loan and related Mortgage File
granted by the Depositors to the Trustee pursuant to the Pooling and Servicing
Agreement shall terminate without any further action by the Custodian, the
Originators, the Depositors or Trustee.
Section 3.05 Other Duties of Custodian. The Custodian shall have and
perform the other following powers and duties:
(a) Safekeeping. To segregate the Mortgage Files from all other
mortgages and mortgage notes and similar documents in its possession, to
identify the Mortgage Files as
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being held and to hold the Mortgage Files for and on behalf of the Mortgage
Holders (which, on and after the Closing Date, and after completion of the
Transfers described in Section 3.1, shall be the Trustee for the benefit of the
Certificateholders), to maintain accurate records pertaining to each Mortgage
Note and Mortgage in the Mortgage Files, to provide no later than 45 days
following the Closing Date, and monthly thereafter, a list of all Mortgage Loan
Files held by it, together with a current exception report, and to provide such
information as is necessary to enable the Trustee to deliver the reports and
notifications required by Section 2.06 of the Pooling and Servicing Agreement.
Custodian will promptly report to the Trustee any failure on its part to hold
the Mortgage Files as herein provided and promptly take appropriate action to
remedy any such failure.
(b) Administration; Reports. In general, to attend to all
non-discretionary details in connection with maintaining custody of the
Mortgage Files on behalf of the Mortgage Holders as may be expressly provided
herein or as may be required or customary for a custodian or bailee pursuant to
FNMA guidelines. In addition, Custodian shall assist the Trustee and the
Servicer (at Servicer's cost) generally in the preparation of reports to
holders or to regulatory bodies to the extent necessitated by Custodian's
custody of the Mortgage Files.
Section 3.06 Access to Records. Custodian shall permit the Trustee,
the Certificate Insurer and their respective duly authorized agents, attorneys
or auditors and those Persons permitted access pursuant to Section 5.12 of the
Pooling and Servicing Agreement to inspect the Mortgage Files and the books and
records maintained by the Custodian pursuant hereto at such reasonable times as
they may reasonably request, subject only to compliance with the terms of the
Pooling and Servicing Agreement.
Section 3.07 Instructions; Authority to Act. The Custodian shall be
deemed to have received proper instructions with respect to the Mortgage Files
upon its receipt of written instructions signed by a Responsible Officer of the
Trustee and may conclusively rely on such instructions. In addition, the
Custodian may conclusively rely upon any release request delivered to it in the
form attached as Exhibit B hereto duly executed by the Servicer, such release
form being agreed to constitute certification to the Custodian (upon which
Custodian may rely) that all conditions precedent to the release of the
Mortgage File have been met.
ARTICLE IV
OWNERSHIP AND TRANSFER OF MORTGAGE LOANS
Section 4.01 Transfer of Mortgage Loans. The transfer of Mortgage
Loans in connection with any Transfer shall occur in the following manner:
(i) Custodian shall, promptly upon receiving a Transfer
Certificate relating to the transfer of Mortgage Loans pursuant to a
Transfer:
(A) Determine whether each document in the
Mortgage File listed in Section 2.04 of the Transfer
Agreement and Section 2.04 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed on the
Mortgage
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Loan Schedule has been delivered to Custodian, and whether
Custodian is able to deliver a Trust Receipt and
Certification;
(B) promptly advise the applicable Mortgage
Holder, the Certificate Insurer, the Trustee, the applicable
Originator and the applicable Depositor by telephone or by
facsimile transmission if it determines that any document
referred to in (a) above has not been so delivered and take
no further action under this Section 4.1 until it determines
that such documents have been so delivered;
(C) upon determining that such documents have
been so delivered, Custodian shall issue and deliver to
applicable Mortgage Holder the Trust Receipt and
Certification in accordance with Sections 3.1 and 3.2 of this
Agreement; and
(ii) Custodian shall hold the Mortgage Files for each
Mortgage Holder subject to satisfaction of the conditions precedent
with respect to the applicable Transfer.
Section 4.02 Substitution and Purchase of Mortgage Loans.
The substitution or purchase of Mortgage Loans pursuant to Section 2.05 or
Section 3.03 of the Transfer Agreement and Section 2.06 or Section 3.03 of the
Pooling and Servicing Agreement shall occur in the following manner:
(i) On or before the date of such substitution or
purchase, the Servicer shall send the Trustee notice, with a copy to
Custodian, indicating the Mortgage Loans to be replaced with
Qualified Substitute Mortgage Loans or to be purchased and the
aggregate purchase prices and Substitution Adjustments, if any, to be
paid on such date.
(ii) Upon receiving written confirmation from the
applicable Depositors and the Trustee on behalf of the
Certificateholders that they have received the applicable purchase
price, Qualified Substitute Mortgage Loans or Substitution
Adjustments, Custodian shall return to the applicable party (as
identified to the Custodian by the Trustee) Mortgage Files related to
the Mortgage Loans purchased or substituted on such date.
Section 4.03 No Service Charge for Transfer of Mortgage
Loans. No service charge shall be made for any transfer of Mortgage Loans, but
Custodian may require payment from the Servicer of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
of Mortgage Loans.
Section 4.04 Defeasance. When a Mortgage Loan is purchased or
substituted by the Servicer, the Depositor or the applicable Originator
pursuant to the terms of the Transfer Agreement and the Pooling and Servicing
Agreement, the applicable Mortgage Holder's interest in such Mortgage Loan and
all Collateral with respect to such Mortgage Loan shall terminate, such
Mortgage Loan and related Collateral shall revert to the applicable Originator
and the applicable Mortgage Holder's rights, title and interest therein shall
cease, and the Trustee shall execute such instruments acknowledging termination
and discharge of its interest therein as are required by applicable law.
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ARTICLE V
CUSTODIAN
Section 5.01 Representations, Warranties and Covenants of
Custodian. Custodian hereby represents and warrants to, and covenants with, the
Originators, the Depositors, the Representative, the Servicer, the Certificate
Insurer and the Trustee, that as of the date of each Trust Receipt and
Certification:
(i) Custodian is duly organized, validly existing and in
good standing under the laws of the United States;
(ii) Custodian has the full power and authority to hold each
Mortgage Loan (whether acting alone or through an agent) and to
execute, deliver and perform, and to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement constitutes
a legal, valid and binding obligation of Custodian, enforceable
against it in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) Neither the execution and delivery of this Agreement,
the delivery of Mortgage Loans and assignments of Mortgages to
Custodian, the issuance of the Mortgage Receipts and Trust Receipt and
Certifications, the consummation of the transactions contemplated
hereby or thereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement will conflict with or result in a
breach of any of the terms, conditions or provisions of Custodian's
charter or bylaws or any agreement or instrument to which Custodian is
now a party or by which it is bound, or constitute a default or result
in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which Custodian or its property is subject; except that no
representation or warranty is made as to compliance with laws and
regulations, other than those of the United States and the State of
Florida, relating to qualifications, licensure or regulation of
custodians of mortgage loans originated in states or commonwealths
other than Florida;
(iv) Custodian does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(v) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened, which if determined adversely to
Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or obligations
of Custodian thereunder, or which would have a material adverse effect
on the financial condition of Custodian;
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Custodian of
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or compliance by Custodian with this Agreement or the consummation of
the transactions contemplated hereby or thereby; except that no
representation or warranty is made as to consents, approvals,
authorizations or orders of any courts or governmental agencies or
bodies, other than those of the United States and the State of
Florida, relating to qualifications, licensure or regulation of
custodians of mortgage loans originated in states or commonwealths
other than Florida; and
(vii) Upon written request of the Trustee or the Certificate
Insurer, Custodian shall take such steps as requested by the Trustee
or the Certificate Insurer to protect or maintain any interest in any
Mortgaged Property and any insurance applicable thereto.
Custodian makes no representations or warranties as to the
validity, legality, sufficiency, enforceability, perfection, genuineness or
prior recorded status of any of the documents contained in each Mortgage File
or the collectability, insurability, effectiveness or suitability of any
Mortgage Loan.
Section 5.02 Charges and Expenses. The Servicer will pay all
fees and expenses of Custodian in connection with the performance of its duties
hereunder in accordance with written agreements to be entered into from time to
time between the parties hereto and Custodian, including fees and expenses of
counsel incurred by Custodian in the performance of its duties hereunder;
provided, however, that (i) Custodian shall in no event acquire any lien upon
any Mortgage Loan deposited under this Agreement or the Transfer Agreement or
the Pooling and Servicing Agreement, or any claim against any Mortgage Holder
by reason of the failure of the Servicer to pay any of such charges or expenses
and (ii) in the event the Servicer fails to pay the fees and expenses of
Custodian as set forth in such written agreements, Custodian shall have no
obligation to take actions or incur costs in connection with this Agreement
unless the Servicer or another Person has made adequate provision for payment
of Custodian's fees and expenses. The Servicer shall indemnify the Custodian
against payment of any documentary stamp taxes, intangible taxes and other
similar taxes, penalties and interest incurred in connection with the Mortgage
Loans and the transactions contemplated hereby.
Section 5.03 No Adverse Interests. Custodian covenants and
warrants to the Originators, the Depositors, the Representative, the Servicer,
the Certificate Insurer, and the Trustee, that as of the date of each Trust
Receipt and Certification: (i) it holds no adverse interest, by way of security
or otherwise, in any Mortgage Loan; and (ii) the execution of this Agreement
and the creation of the custodial relationship hereunder does not create any
interest, by way of security or otherwise, of Custodian in or to any Mortgage
Loan, other than Custodian's rights as custodian hereunder.
Section 5.04 Inspections. Upon reasonable prior written
notice to Custodian, the Servicer, the Depositors, the Trustee, the Certificate
Insurer and such Person's agents, accountants, attorneys and auditors will be
permitted during normal business hours to examine Custodian's documents,
records and other papers in possession of or under the control of Custodian
relating to the Mortgage Loans.
Section 5.05 Insurance. Custodian shall, at its own expense,
maintain at all times during the existence of this Agreement and keep in full
force and effect, (1) fidelity
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insurance, (2) theft of documents insurance, and (3) forgery insurance subject
to deductibles and in such amounts, as is customary for custodians of this
kind, and with insurance companies reasonably acceptable to the Servicer, the
Trustee and the Certificate Insurer. A certificate of the respective insurer as
to each such policy or a blanket policy for such coverage shall be furnished to
the Servicer, the Trustee or the Certificate Insurer, upon request, containing
the insurer's statement or endorsement that such insurance shall not terminate
prior to receipt by such party, by registered mail, of 10 days advance notice
thereof.
Section 5.06 Limitation of Liability. Custodian assumes no
obligation, and shall be subject to no liability, under this Agreement, except
for its negligence or willful misconduct in the performance of the obligations
and duties as are specifically set forth herein. Custodian shall not be liable
for any action or non-action by it in reliance on advice of counsel believed by
it in good faith to be competent to give such advice. Custodian may rely and
shall be protected in acting upon any written notice, order, request, direction
or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
Section 5.07 Indemnification. The Servicer hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reasons of its
acting as custodian under this Agreement, including indemnification of the
Custodian against any and all expenses, including attorney's fees if counsel
for the Custodian has been approved by the Servicer (said approval not to be
unreasonably withheld), and the cost of defending any action, suit or
proceedings or resisting any claim. Notwithstanding the foregoing, it is
specifically understood and agreed that in the event any such claim, liability,
loss, action, suit or proceeding or other expense, fees or charge shall have
been caused by reason of any negligent act, negligent failure to act, or
willful misconduct on the part of the Custodian, or which shall constitute a
willful breach of its duties hereunder, the indemnification provisions of this
Agreement shall not apply. The Custodian agrees to indemnify, defend and hold
harmless the Trustee against any liability to Certificateholders arising out of
the negligence or willful misconduct of the Custodian (a) in the verification
or execution of any Trust Receipt and Certification or (b) resulting in the
loss of Mortgage Files in the custody of the Custodian. This indemnity shall
include indemnification as to reasonable attorneys' fees and costs, whether or
not suit be brought, and including such fees and costs on appeal. The Trustee
shall give prompt written notice to the Custodian of any claim for which
indemnity is or may be sought and shall afford to the Custodian the opportunity
to defend such claim.
Section 5.08 Further Rights of Custodian. (a) If the
Custodian is at any time uncertain of its obligations hereunder, the Custodian,
upon prior written notice to the Trustee, the Originators, the Depositors and
the Servicer, may refrain from taking any action with respect to such matter
until such uncertainty is removed. If conflicting demands are made on the
Custodian with respect to any matter, the Trustee's demand shall control,
except during the period prior to the issuance of the Trustee's Trust Receipt
pursuant to Section 3.1 hereof, when the applicable Mortgage Holder's demand
shall control and the Custodian shall have the right to rely on such
controlling demand. The Custodian shall have the right in any such case to
interplead any or all of the documents contained in the Mortgage Files in a
court of competent jurisdiction and, upon delivery thereof, shall have no
further obligations thereunder with respect to such documents.
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(b) The obligations of the Custodian shall be determined
solely by the express provisions of this Agreement. No representation,
warranty, covenant or obligation of the Custodian shall be implied with respect
to this Agreement or the Custodian's service hereunder. Without limiting the
generality of the foregoing statement, except as specifically required herein,
the Custodian shall be under no obligation to inspect, review or examine the
Mortgage Files to determine that the contents thereof are complete, genuine,
enforceable or appropriate for the represented purpose or that they have been
actually recorded or filed in required offices or that they are other than what
they purport to be on their face.
(c) No provision of this Agreement shall require the
Custodian to spend or risk its own funds or otherwise incur financial liability
in performance of its duties under this Agreement unless, pursuant to Section
5.2 hereof, adequate provision has been made for the reimbursement of the
Custodian's expenses hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended from
time to time by Custodian, the Originators, the Depositors, the Representative,
the Servicer and the Trustee (subject to the prior written consent of the
Certificate Insurer) by written agreement signed by such parties.
SECTION 6.02 GOVERNING LAW. 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, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT
WITH REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH
BY ITS TERMS APPLIES TO THIS AGREEMENT).
Section 6.03 Notices. All demands, notices and communication
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by overnight mail, certified mail or
registered mail, postage prepaid, to (i) in the case of the Servicer, each
Originator and the Representative, EquiCredit Corporation of America, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General
Counsel, (ii) in the case of each Depositor, c/o EquiCredit Corporation of
America, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: General Counsel, (iii) in the case of the Trustee, [Trustee],
_____________, Attention: _________, (iv) in the case of the Custodian,
[Custodian], ______________________, Attention: _________ and (v) in the case
of the Certificate Insurer and the Rating Agencies, at their respective
addresses set forth in the Pooling and Servicing Agreement, and, in each such
case, at such other addresses as may hereafter be furnished to each party
hereto in writing.
Section 6.04 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the
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remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement.
Section 6.05 No Partnership. Nothing herein contained shall
be deemed or construed to create a co-partnership or joint venture between
Custodian and the other parties hereto.
Section 6.06 Termination of Agreement. This Agreement shall
be terminated upon termination of the Pooling and Servicing Agreement or at the
option of Trustee on 30 days written notice to Custodian, the Depositors and
the Originators. Concurrently with, or as soon as practicable after, the
termination of this Agreement, Custodian shall redeliver the Mortgage Files to
the Trustee at such place as the Trustee may reasonably designate. In
connection with the administration of this Agreement, Custodian and the Trustee
may agree from time to time upon the interpretation of the provisions of this
Agreement, as such interpretation may in their opinion be consistent with the
general tenor and purposes of this Agreement, any such interpretation to be
signed and annexed hereto.
Section 6.07 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 6.08 Assignment. No party hereto shall sell, pledge,
assign or otherwise transfer this Agreement without the prior written consent
of the other parties hereto.
Section 6.09 Headings. Section headings are for reference
purposes only and shall not be construed as a part of this Agreement.
Section 6.10 Advice of Counsel. Custodian shall be entitled
to rely and act upon advice of counsel with respect to its performance
hereunder as Custodian and shall be without liability for any action reasonably
taken pursuant to such advice, provided that such action is not in violation of
application Federal or State law. This paragraph shall not negate Custodian's
obligations under Section 5.7.
Section 6.11 Third Party Beneficiary. The Certificate Insurer
is an intended third party beneficiary of this Agreement.
Section 6.12 Resignation of Custodian. (a) The Custodian
may at any time resign and terminate its obligations under this Agreement upon
at least 90 days' prior written notice to the Servicer and the Trustee. The
Custodian may be removed at any time at the written request of the Trustee or
the Servicer. In the event of such resignation or removal, the Servicer shall
promptly appoint a successor custodian acceptable to the Trustee and the
Certificate Insurer (which approvals shall not be unreasonably withheld). If
the Servicer fails to appoint a successor custodian within 30 days, the Trustee
shall appoint a successor custodian. In no event shall the resignation of the
Custodian be effective until a successor custodian is duly appointed hereunder.
If a successor Custodian has not been appointed and/or has not accepted
appointment within 90 days after giving notice of such resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor custodian. One original counterpart of
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such instrument of appointment shall be delivered to each of the Servicer, the
Custodian and the successor custodian. The Servicer shall notify [Rating
Agency] and [Rating Agency] of any such resignation or removal and the
appointment of a successor custodian.
(b) In the event of any resignation, the Custodian shall
promptly transfer to the successor custodian (or to the Trustee if no successor
custodian has been appointed) all of the Mortgage Files in its possession under
this Agreement and take such other action as may be reasonably requested by the
Servicer or Trustee to effect the transfer of the Custodian's Mortgage Files to
the successor custodian, which shall provide a written receipt for all such
transferred documents and instruments. On completion of such transfer, the
Custodian shall be relieved of all further responsibilities and obligations
hereunder.
Section 6.13 Limitation of Liability of Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement has
been executed by [Trustee], not in its individual capacity but solely in its
capacity as Trustee, and in no event shall [Trustee] in its individual capacity
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Depositors hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Depositors.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the day and year first above written.
ORIGINATORS
[EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC.
EQUICREDIT CORPORATION/ALA. & MISS.]
By:
--------------------------------
Name:
Title:
EQUICREDIT CORPORATION OF AMERICA,
as Representative and Servicer
By:
--------------------------------
Name:
Title:
DEPOSITORS
EQCC RECEIVABLES CORPORATION
By:
--------------------------------
Name:
Title:
EQCC ASSET BACKED CORPORATION
By:
--------------------------------
Name:
Title:
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TRUSTEE
[TRUSTEE],
as Trustee
By:
--------------------------------
Name:
Title:
CUSTODIAN
[CUSTODIAN],
as Custodian
By:
--------------------------------
Name:
Title:
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EXHIBIT A
TRUST RECEIPT AND CERTIFICATION
Trust Receipt No._____
Aggregate Outstanding
Principal Amount:________
_____, 199_
To: [DEPOSITOR]
[TRUSTEE]
Re: Custodial Agreement, dated as of _____, 199_ (the "Custodial
Agreement"), by and among the Originators listed on Exhibit C
thereto (collectively, the "Originators") Equicredit
Corporation of America, as Representative (the
"Representative") and as Servicer (the "Servicer"), EQCC
Receivables Corporation and EQCC Asset Backed Corporation
(collectively, the "Depositors"), [Trustee], as Trustee (the
"Trustee") and [Custodian], as Custodian (the "Custodian")
Gentlemen:
In accordance with the provisions of Section 3.2 of the
above-referenced Custodial Agreement, the undersigned, as Custodian, hereby
certifies that it has received all of the items listed in Section 3.1 of the
Custodial Agreement with respect to each Mortgage Loan identified on the
Mortgage Loan Schedule (the "Mortgage Loan Schedule") attached hereto dated as
of _______, 199_. Custodian confirms that the Mortgage Loan number in each
Mortgage File conforms to the respective Mortgage Loan number listed on the
Mortgage Loan Schedule and that the "Aggregate Outstanding Principal Amount"
set forth above corresponds to like information contained on the Mortgage Loan
Schedule. Any exceptions or deficiencies in a Mortgage File which are required
by the Custodial Agreement to be reported are set forth in the Master Exception
Report dated _________ , 199_ and made a part hereof. Capitalized terms used
herein without definition shall have the meanings ascribed to them in the
Custodial Agreement.
Custodian further certifies that as to each Mortgage Loan, Custodian
holds the Mortgage Loan in its name as custodian for the benefit of [the
Depositor] [the Trustee], without written notice (a) of any adverse claims,
liens or encumbrances, (b) that any Mortgage Loan was overdue or has been
dishonored, (c) of evidence on the face of any Mortgage Loan or other document
in the Mortgage File of any security interest therein, or (d) of any defense
against or claim to the Mortgage Loan by any other party.
Custodian makes no representations or warranties as to the validity,
legality, sufficiency, enforceability, genuineness or prior recorded status of
any of the documents
A-1
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contained in each Mortgage File or the collectability, insurability,
effectiveness or suitability of any Mortgage Loan.
Custodian confirms that it holds each Mortgage Loan and the other
documents in the related Mortgage File for the benefit of [the Depositor][the
Trustee] and its transferees from time to time. Custodian hereby acknowledges
and agrees that it is holding such Mortgage Loans now and hereafter, from time
to time, in its custody or control as agent and bailee for the [Depositor][the
Trustee], if the transfer of Mortgage Loans is deemed not to be an absolute
transfer of such Mortgage Loans, subject to the continuing pledge and security
interest granted by [Originator][Depositor] to [the Depositor][the Trustee]
under the [Transfer Agreement] [Pooling and Servicing Agreement].
Upon repurchase or substitution of the Mortgage Loans to which this
Trust Receipt and Certification relates and payment of the applicable
repurchase price, the Mortgage Loans to which this Trust Receipt and
Certification relates shall be returned and released by Custodian to
[Depositor][the Trustee], and this Trust Receipt and Certification shall be and
be deemed to be canceled by Custodian and of no force and effect.
------------------------
----------------,
as Custodian
By:
---------------------
Name:
Title:
A-2
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EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: [Custodian]
Re: Custodial Agreement, dated as of _____, 199_, by and among the
Originators listed on Exhibit C thereto (collectively, the
"Originators"), Equicredit Corporation of America, as
Representative (the "Representative") and as Servicer (the
"Servicer"), EQCC Receivables Corporation and EQCC Asset Backed
Corporation (collectively, the "Depositors"), [Trustee], as
Trustee (the "Trustee") and [Custodian], as Custodian (the
"Custodian")
In connection with the administration of the Mortgage Loans held by
you as Custodian under the above-referenced Custodial Agreement, [_________],
on behalf of [________], requests the release, and acknowledges receipt, of the
following for the Mortgage Loan described below, for the reason indicated:
A. Documents Released
_____ 1. Mortgage Note
_____ 2. Mortgage
_____ 3. Assignment of Mortgage
_____ 4. Other documents:
---------------------
---------------------
---------------------
---------------------
B. Mortgagor's Name, Address & Zip Code:
C. Mortgage Loan Number:
D. Reason for Requesting Documents (check one)
_____ 1. Mortgage Loan Paid in Full.
_____ 2. Mortgage Loan in Foreclosure.
B-1
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_____ 3. Mortgage Loan Substituted.
_____ 4. Other Liquidation (Mortgage Loan in Bankruptcy,
Repurchase, Rescission).
_____ 5. Non Liquidation (Other, explain)
--------------------------------
--------------------------------
If box 1, 3 or 4 above is checked, and if all or
part of Mortgage File was previously released to us, please
release to us our previous receipt on file with you, as well
as any additional documents in your possession relating to
the above specified Mortgage Loan.
If box 2 or 5 above is checked, upon our return of
all of the above documents to you as Custodian, please
acknowledge your receipt by signing in the space indicated
below, and returning this form.
The Servicer hereby certifies that all amounts
received or to be received in connection with such payment
which are required to be deposited in the Principal and
Interest Account pursuant to Section 5.03 of the Pooling and
Servicing Agreement dated _____, 199_, have been or will be
so deposited.
EQUICREDIT CORPORATION OF AMERICA,
as Representative and Servicer
By:
--------------------------
Name:
Title:
Date:
[--------------------------]
By:
--------------------------
Name:
Title:
Date:
B-2
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Documents returned to Custodian:
-----------------------------------------
as Custodian
By:
---------------------------
Name:
Title:
Date:
B-3
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EXHIBIT C
ORIGINATORS
[EQUICREDIT CORPORATION OF AMERICA
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC
EQUICREDIT CORPORATION/ALA. & MISS.]
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EXHIBIT D
Transfer Certificate
[Date]
[CUSTODIAN]
as Custodian under the
Custodial Agreement (defined below)
-------------
-------------
RE: Custodial Agreement, dated as of _____, 199_ (the
"Custodial Agreement"), by and among the Originators
listed in Exhibit C thereto (collectively, the
"Originators"), Equicredit Corporation of America,
as Representative (the "Representative") and as
Servicer (the "Servicer"), EQCC Receivables
Corporation and EQCC Asset Backed Corporation
(collectively, the "Depositors"), [Trustee], as
Trustee (the "Trustee") and [Custodian], as
Custodian (the "Custodian")
To whom it may concern:
Pursuant to Section 3.1 of the above-referenced Custodial
Agreement (capitalized terms used herein but not otherwise defined shall have
the same meanings assigned to such terms in the Custodial Agreement), we hereby
advise you of the Transfer by the undersigned to [Depositor][the Trustee] of
the Mortgage Loans identified on the Mortgage Loan Schedule[s] attached
[hereto] [to the [Depositor's Trust Receipt[s]] with respect to the undersigned
which we are delivering to you for cancellation]. You are instructed to deliver
to [Depositor][the Trustee] a [Depositor's] [Trustee's] Trust Receipt
evidencing [such Depositor's] [the Trustee's] interest in these Mortgage Loans.
Very truly yours,
[--------------------------------]
By:
--------------------------------
Name:
Title:
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
(See Exhibit D to the Pooling and Servicing Agreement)
Sched. I-1