EXHIBIT 10.53
BAILEE AGREEMENT AND AMENDMENT
TO PURCHASE CONTRACT
THIS BAILEE AGREEMENT AND AMENDMENT TO PURCHASE CONTRACT (the "Amendment")
by and among FIRST COLLATERAL SERVICES, INC., a California corporation ("First
Collateral"), XXXXXX MORTGAGE CORPORATION, a California corporation ("Original
Seller"), and THE PRUDENTIAL HOME MORTGAGE COMPANY, INC., a New Jersey
corporation ("Buyer"), is dated as of January 6, 1993.
WHEREAS, Original Seller and Buyer have entered into: (i) a Purchase
Contract dated March 28, 1991 (the "Contract"); and (ii) one or more Commitment
Letters, as defined in the Contract (the Contract and any and all such
Commitment Letters being hereafter sometimes collectively called the
"Instruments"); and
WHEREAS, pursuant to the terms of the Instruments, Original Seller
agreed to sell and Buyer agreed to buy Mortgage Loans (as defined in the
Contract); and
WHEREAS, Original Seller previously indicated to Buyer that First
Collateral was to serve as a warehouse lender for Original Seller in connection
with certain Mortgage Loans pursuant to a traditional warehouse loan and
security agreement, whereby First Collateral would loan monies to Original
Seller to fund Mortgage Loans to be offered for sale to Buyer pursuant to the
Instruments; and
WHEREAS, due to certain regulatory concerns of First Collateral regarding
its authority to serve as a warehouse lender for Original Seller, First
Collateral and Original Seller have entered into a Master Mortgage Loan Purchase
Agreement (the "Master Agreement") dated October 7, 1992, between Original
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Seller and First Collateral, which provides for Original Seller to: (i) sell
such Mortgage Loans to First Collateral pending resale of such Mortgage Loans to
Buyer pursuant to the Instruments; and (ii) grant First Collateral an ownership
interest in the documents and materials (hereafter collectively called the
"Mortgage Documents") evidencing, securing and/or issued in connection with such
Mortgage Loans; and
WHEREAS, First Collateral has advised Buyer that First Collateral has
obtained any and all approvals, consents and authorizations from any and all
appropriate governmental or quasi-governmental agencies and instrumentalities
having or claiming jurisdiction over First Collateral and/or its corporate
parent, which approvals, consents and authorizations are necessary or
appropriate for the entering into, and performance of, this Amendment by First
Collateral and/or its corporate parent; and
WHEREAS, First Collateral has requested that Buyer act as First
Collateral's bailee with respect to such Mortgage Documents until either the
related Mortgage Loan is purchased by Buyer or the Mortgage Documents are
returned to First Collateral; and
WHEREAS, Buyer wants to assure, among other concerns, that, upon its
payment of the Purchase Price (as defined in the Agreement), (i) Buyer will
acquire all right, title and interest in and to each such Mortgage Loan, which
such title shall be good and marketable and free and clear of any lien, pledge,
encumbrance, security interest or claim of any person whatsoever; (ii) each such
Mortgage Loan is not subject to any set-off, counterclaim or defense to payment;
and (iii) each of the Instruments is a legal, valid and binding obligation of
Original Seller, enforceable against Original Seller in accordance with its
terms, notwithstanding that Original Seller will purport to sell such Mortgage
Loans to First Collateral for resale to Buyer in accordance with the terms of
the Master Agreement; and
WHEREAS, Original Seller and First Collateral are willing to provide such
assurances to Buyer-in accordance with the terms of this Amendment.
NOW THEREFORE, in consideration of the agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, First Collateral, Original Seller and Buyer agree as
follows:
Section 1. Recitals. The foregoing recitals, as well as the Agreement,
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are incorporated into this Amendment by this reference and made part hereof, and
this Amendment is incorporated into the Agreement by reference and made a part
thereof.
Section 2. Defined Terms. Unless the context otherwise clearly requires,
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all capitalized terms used in this Amendment shall have the meanings specified
in the Agreement.
Section 3. Definition of "Seller." From and after the date of this
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Amendment, in the event that Original Seller sells a Mortgage Loan to Buyer
pursuant to the Instruments, which Mortgage Loan Original Seller first purported
to sell to First Collateral pursuant to the Master Agreement, the definition of
"Seller," as used in the Instruments, shall be deemed to include both Original
Seller and First Collateral, as the context shall permit or require, but only
for the purpose set forth below in Section 4.
Section 4. Liability of Parties Comprising "Seller."
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(a) The parties hereto acknowledge that the sole purpose for the
provisions of Section 3 of this Amendment is to assure Buyer that the purported
initial sale of Mortgage Loans by Buyer to First Collateral for resale to Buyer
is not intended to, and shall not, in any way, diminish, impair, or otherwise
limit, either generally, or in connection with any particular Mortgage Loan, (i)
any of the representations or warranties made by, or any of the liabilities,
duties and obligations of, Original Seller under the Instruments; or (ii) any of
the rights and remedies of Buyer against Original Seller under the Instruments.
Original Seller and First Collateral hereby expressly waive any and all claims,
counterclaims and defenses Seller may now or hereafter have to any of its
liabilities, duties or obligations under the Instruments, which claims,
counterclaims or
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defenses are or may be based, directly or indirectly, on any characterization
(by a court of competent jurisdiction or by any governmental or quasi-
governmental agency, body or regulator having jurisdiction or control over
Original Seller, First Collateral or any of their respective assets) of First
Collateral's interest in any Mortgage Loan as an ownership interest rather than
a security interest, following Buyer's payment of the Purchase Price as provided
herein. Original Seller and First Collateral hereby jointly and severally
indemnify Buyer and hold Buyer harmless from and against any and all losses,
claims, lawsuits, actions, judgments, damages, penalties, fines, forfeitures,
costs and expenses, including, without limitation, reasonable attorneys' fees
(all of the foregoing being hereafter collectively referred to herein as
"Losses"), resulting from: (1) any such characterization of First Collateral's
interest or other failure of the provisions of Sections 3 and 4 hereof to be
realized by Buyer; (2) a finding that any of First Collateral's representations
and warranties made herein were false in any material respect on the date when
made; or (3) First Collateral's failure to perform or observe in a timely manner
any agreement, covenant, obligation or duty hereunder.
(b) Except as is expressly set forth herein, nothing in this Amendment is
intended to: (i) create joint and several liability on the part of Original
Seller and First Collateral in connection with Mortgage Loans purchased by Buyer
pursuant to the Instruments; (ii) impose any covenants, agreements or
undertakings on First Collateral under the Instruments; or (iii) require First
Collateral to make any specific representations and warranties to Buyer under
the Instruments, except to the limited extent necessary to assure that First
Collateral's purported purchase and ownership of the Mortgage Loans pursuant to
the Master Agreement in no way defeats or impairs the purpose of this Amendment
as set forth in Section 4(a) above. In this regard, subject to Buyer's
obligations in this Amendment to act as bailee for and on behalf of First
Collateral, Buyer's acceptance of delivery of the Mortgage Loans from First
Collateral, in First Collateral's purported role as the purchaser thereof under
the Master Agreement, is solely at the request and for the benefit of Original
Seller, and without determining, acknowledging or expressing an opinion as to
whether any interest of First Collateral in such Mortgage Loans is a security
interest or an ownership interest.
Section 5. Notification and Acknowledgement of Interest. Notwithstanding
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any provision of any of the Instruments or any other document executed by Buyer
and Seller to the contrary, and provided that this Amendment remains in full
force and effect, Buyer agrees that the closing agent may forward the original
executed Mortgage Note directly from the Closing of the Mortgage Loan to First
Collateral. Absent Buyer's prior written consent (which consent may be given or
withheld in Buyer's sole discretion), any intervening endorsement from Original
Seller to First Collateral appearing on a Mortgage Note shall render such
Mortgage Note ineligible for purchase by Buyer pursuant to the Instruments.
First Collateral shall attach to each shipment of one or more Mortgage Notes a
cover letter, substantially in the form of Exhibit A attached hereto and
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incorporated herein by reference, that: (i) references this
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Amendment; and (ii) acknowledges that each related Mortgage Loan is subject to
First Collateral's claim of an interest. First Collateral, upon instruction
from Original Seller, shall promptly forward the Mortgage Note and any other
Mortgage Documents to Buyer at the address set forth in Section 13 below. Upon
receipt, Buyer shall sign and date such statement and shall mail or telecopy
it to First Collateral at the address or number set forth in Section 13 below.
Section 6. The Mortgage Loan File The Mortgage Loan File (as defined in
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the Agreement) shall not be deemed complete until the receipt of the original
executed Mortgage Note by Buyer, which Mortgage Note conforms to all of Buyers's
requirements, including, without limitation, those set forth in Section 5 above.
Section 7. Buyer as Bailee. Buyer will hold the Mortgage Documents, in
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which First Collateral holds an interest, as bailee for the benefit of First
Collateral, until Buyer is released as set forth in Section 8 hereof. Prior to
such release, Buyer shall not deliver the Mortgage Documents to any third party
(other than a third party that is wholly-owned, directly or indirectly, by The
Prudential Insurance Company of America). Buyer shall act only as a bailee for
First Collateral and shall not be deemed to be a representative, trustee, or
fiduciary or otherwise an agent of or for First Collateral or Original Seller
with respect to the Mortgage Documents, and First Collateral and Original Seller
hereby jointly and severally indemnify Buyer against any and all Losses to Buyer
resulting from any characterization of Buyer's actions under this Section 7 as
anything other than the actions of a bailee. The standard of care to be
exercised by Buyer in holding the Mortgage Documents shall be the same degree of
care and skill as Buyer exercises when it holds Mortgage Loan documents on its
own behalf.
Section 8. Termination of Security Interest and Release of Bailee.
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Buyer's status and obligations as bailee shall automatically terminate, without
further action by any party, upon the earliest to occur of: (i) payment of the
Purchase Price to First Collateral, as set forth in Section 9 hereof (the
"Purchase Date"); or (ii) return of the Mortgage Documents to First Collateral,
as set forth in Section 10 hereof. First Collateral agrees that all right,
title, and interest it may have in and to the Mortgage Documents and the related
Mortgage Loans purchased by Buyer are and shall be fully released effective as
of the Purchase Date, whereupon Buyer will have no further obligations to First
Collateral with respect to such Mortgage Documents or related Mortgage Loans.
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Section 9. Purchase Price. The "Purchase Price" means the price Buyer
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agrees to pay to purchase a Mortgage Loan pursuant to the Instruments. Original
Seller agrees to provide First Collateral with copies of the Instruments
promptly upon First Collateral's request. First Collateral and Original Seller
acknowledge that the Purchase Price may be less than the full principal amount
of the Mortgage Note evidencing the Mortgage Loan, and that Original Seller may
have paid or advanced other funds to Buyer in connection with the Instruments,
which funds are not included in the Purchase Price. Buyer agrees that the
Purchase Price paid to First Collateral with respect to a particular Mortgage
Loan shall not be reduced due to adjustments relating to another Mortgage Loan.
For purposes of the Purchase Date set forth in Section 8 hereof, the Purchase
Price shall be deemed paid in full when First Collateral receives a federal wire
transfer in the amount of the Purchase Price sent to First Collateral c/o
Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, pursuant to the
following wire transfer instructions:
First Collateral Services, Inc. DDA #3685-7444
c/o Citibank, N.A.
ABA #000000000
Telegraphic Abbr: Citibank NYC
Text Line One: Paydown on Xxxxxx Mortgage Corporation, #5975
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Text Line Two: (References)
With respect to any Mortgage Loan for which Buyer has received a notification of
an interest held by First Collateral: (i) Buyer shall only wire payments to
First Collateral, as specified above; and (ii) no change in the above wire
transfer instructions shall be honored by Buyer unless provided in writing to
Buyer and signed by First Collateral. Buyer shall not be liable to First
Collateral or Original Seller for payments lost or delayed due to incorrect
wiring instructions provided by First Collateral. Buyer shall notify First
Collateral and Original Seller of the purchase of a Mortgage Loan by sending a
funding advice to First Collateral and Original Seller.
Section 10. Return of Mortgage Documents to First Collateral. Buyer will
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deliver the Mortgage Note and other Mortgage Documents in Buyer's possession to
First Collateral: (i) upon receipt by Buyer of First Collateral's written
request therefor (provided that such request is received by Buyer prior to
Buyer's payment of the Purchase Price); or (ii) promptly, in the event that
Buyer elects not to purchase the Mortgage Loan, or in the event that the
Mortgage Note (or any of the other Mortgage Documents) is defective and requires
correction. In the alternative, Buyer shall take such other action with respect
to the Mortgage Note and other Mortgage Documents as may be agreed upon in
writing between First Collateral and Buyer. Any delivery from Buyer to First
Collateral shall be made by express mail to the address of First Collateral set
forth in Section 13 hereof.
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Section 11. Representations and Warranties.
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(a) As of the date of this Amendment and as of the date of delivery of
each Mortgage Loan to Buyer, Original Seller represents and warrants that the
Certification of Interest signed by a duly authorized representative of Original
Seller in the form set forth in Exhibit B attached to this Amendment and
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incorporated herein by reference, is true and accurate in all respects.
Original Seller covenants and agrees immediately to inform Buyer of any change
in the list of Banks included in such Certification of Interest, and further
covenants and agrees to execute a revised true and accurate Certification of
Interest to reflect any such change.
(b) As of the date of delivery of each Mortgage Loan to Buyer:
(i) First Collateral represents and warrants to Buyer that First
Collateral has not assigned, hypothecated, transferred, pledged,
or otherwise conveyed the Mortgage Documents to any other party,
or recorded its interest in the Mortgage Documents, or caused the
Mortgage Note to be endorsed in its favor, and during the period
that Buyer holds the Mortgage Documents as bailee, unless and
until the Mortgage Documents are returned by Buyer to First
Collateral, First Collateral will not assign, hypothecate,
pledge, transfer, or otherwise convey First Collateral's right,
title, or interest in such Mortgage Documents or record or file
its interest therein, or cause the Mortgage Note to be endorsed
in its favor; and
(ii) First Collateral certifies to Buyer that all original notes,
mortgages, and other original documents, instruments and
materials in First Collateral's possession relating to each such
Mortgage Loan (except for the Master Agreement between First
Collateral and Original Seller and any unrecorded assignments)
have been delivered to Buyer; and
(iii) First Collateral represents and warrants to Buyer that neither
First Collateral nor its agents have engaged in any act, or have
failed to engage in any act, that has the effect of impairing
either (x) the enforceability of any Mortgage Note or of any of
the other Mortgage Documents or (y) the absolute ownership
interest of Buyer in and to any Mortgage Loan upon Buyer's
payment of the Purchase Price as provided herein; and
(iv) First Collateral represents and warrants to Buyer that First
Collateral's execution and delivery of this Amendment have been:
(i) specifically approved by the Board of Directors of First
Collateral, and such approval is reflected in the minutes of the
meetings of such Board of Directors, or (ii) approved by an
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officer of First Collateral, who was duly authorized by the Board
of Directors to enter into such types of transaction and such
authorization is reflected in the minutes of the Board of
Directors' meetings; and this Amendment constitutes the "written
agreement" governing First Collateral's rights and obligations
with respect to Buyer resulting from its purported purchase of
Mortgage Loans from Original Seller pursuant to the Master
Agreement, and First Collateral shall continuously maintain all
components of such "written agreement" as an official record of
First Collateral or any successor thereof; and
(v) First Collateral represents and warrants to Buyer that First
Collateral's execution and delivery of this Amendment and the
Master Agreement does not violate any provision of law or
regulation, any order of any court or other agency or
instrumentality of government or other instrument to which First
Collateral is bound, and does not conflict with, result in a
breach of, or constitute (with due notice or lapse of time or
both) a default under any such agreement or other instrument.
(c) As of the date and time of payment to First Collateral of the Purchase
Price for a particular Mortgage Loan as set forth herein, First Collateral
represents and warrants that: (i) First Collateral has fully relinquished all
right, title, and interest it may have in and to such Mortgage Loan; (ii) all
notes, mortgages, and other original documents, instruments and materials that
have been delivered to Buyer pursuant to subparagraph 11(b) (ii) above have been
released to Buyer; and (iii) any unrecorded assignments in First Collateral's
possession relating to such Mortgage Loan are null and void.
Section 12. Remedies of Buyer. In the event that Original Seller or First
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Collateral is in breach of any of their respective representations, warranties,
covenants, or agreements under this Amendment, and in addition to any other
remedies Buyer may have hereunder, under the Instruments, under any other
document, at law, or in equity, Buyer shall be entitled, in its sole and
absolute discretion, to terminate this Amendment and/or to refuse to Fund any
Mortgage Loan in which First Collateral has or claims any interest whatsoever.
Section 13. Notices. All demands, notices and communications
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hereunder (except as may be otherwise expressly provided herein or in the
Instruments) shall be in writing and shall be personally delivered, telecopied,
or mailed (by registered or certified United States mail, postage prepaid), to
the addresses and/or telecopier numbers set forth below, or to such other
address
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and/or telecopier number as may be hereafter be furnished in writing by any
party hereto to the other parties hereto, and shall be deemed effective upon the
earlier of: (i) the date of delivery (if delivered personally or telecopied);
or (ii) three (3) Business Days after the date of mailing (if sent by registered
or certified mail).
Notices to Buyer should be sent to:
The Prudential Home Mortgage Company, Inc.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Lender Express
with a copy to:
The Prudential Home Mortgage Company, Inc.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Legal Department
Notices to Original Seller should be sent to:
Xxxxxx Mortgage Corporation
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0000 Xxxxxxxx Xxxxx
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Xxxxxx Xxxxx XX 00000
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Notices to First Collateral should be sent to:
First Collateral Services, Inc.
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0000 Xxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxx Xxxxx, XX 00000
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Section 14. Continuing Covenant. First Collateral shall execute and
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deliver, in form reasonably acceptable to Buyer, such statements, instruments,
certifications, notices, documents, or other papers, and take such other actions
requested by Buyer, as may be necessary or appropriate to establish, preserve,
maintain or otherwise protect Buyer's ownership interest in the Mortgage Loans
and/or to effectuate the purposes of this Amendment.
Section 15. Counterparts. This Amendment may be executed in any number of
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counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties or signatories hereto may execute this
Amendment by signing any such counterpart.
Section 16. Entire Agreement. This Amendment is an integrated contract
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and is the entire agreement between the parties hereto concerning the subject
matter hereof. This Amendment supersedes all prior and contemporaneous oral
discussions on the topics covered herein and may only be modified or amended in
writing duly signed by all parties hereto.
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Section 17. Ratification of the Agreement. Except as expressly amended
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hereby, the Agreement remains unchanged and in full force and effect in all
respects, and is hereby ratified and confirmed by the parties hereto.
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be
duly executed and delivered by its duly authorized officers as of the day and
year first above written.
ORIGINAL SELLER:
ATTEST: XXXXXX MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxx
-------------------------------- --------------------------------
Title: Controller Title: President
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BUYER:
ATTEST : THE PRUDENTIAL HOME MORTGAGE
COMPANY, INC.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxx Xxxx Name: Xxxxxxx X. Xxxxxx
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Title: Mgr. Contract Administration Title: Vice President
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FIRST COLLATERAL
ATTEST: FIRST COLLATERAL SERVICES, INC.
By: /s/ LeArla Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- --------------------------------
Name: LeArla Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------
Title: Senior Vice President & CFO
Title: ______________________________ ------------------------------
cc: Xxxxx Xxxxxxx
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Exhibit A
[LETTERHEAD OF FIRST COLLATERAL]
Date:
_____________________
The Prudential Home Mortgage Company, Inc.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Lender Express Dear
Dear______________________
Promissory Notes evidencing the below-listed loans are attached hereto and are
being delivered to The Prudential Home Mortgage Company, Inc. ("PHMC"), in
PHMC's capacity as bailee for First Collateral Services, Inc. ("First
Collateral"), pursuant to the Bailee Agreement and Amendment to Purchase
Contract (the "Bailee Agreement") dated January 6, 1993, among First Collateral,
XXXXXX MORTGAGE CORPORATION, as Original Seller, and PHMC, as Buyer.
Loan # ____________________ Name : _________________________
Loan # ____________________ Name : _________________________
Loan # ____________________ Name : _________________________
Kindly send payments or return such Promissory Notes as specified in Sections 9
or 10, respectively, of the above-referenced Bailee Agreement.
Sincerely,
FIRST COLLATERAL SERVICES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
The undersigned hereby acknowledges receipt of this letter and the above-
referenced Promissory Notes, and that the undersigned will hold such Promissory
Notes as bailee on behalf of First Collateral Services, Inc., subject to First
Collateral Services, Inc.'s claim of an interest therein.
THE PRUDENTIAL HOME MORTGAGE COMPANY, INC.
By:_____________________________________
Name :__________________________________
Title:__________________________________
Exhibit B
CERTIFICATION OF INTEREST
As of the date set forth below, the undersigned, a duly authorized
representative of XXXXXX MORTGAGE CORPORATION ("seller"), in connection with
the sale of closed residential mortgage loans (the "Mortgage Loans") to the
Prudential Home Mortgage Company, Inc. ("Buyer") pursuant to the Purchase
Contract (the "Contract") dated as of March 28, 1991, between Buyer and Seller
and certain Commitment Letters between Buyer and Seller entered into from time
to time pursuant to the Contract, hereby certifies on behalf of Seller as
follows:
1. Each Mortgage Loan may, at any one time, be subject only to: (i) a
security interest held by one and only one of the following Warehouse lenders
(individually, a "Warehouse Lender" and collectively the "Warehouse Lenders"):
(LIST NAME(S) AND ADDRESS(ES) OF WAREHOUSE LENDERS)
Imperial Bank 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000
First Collateral Services, Inc. 0000 Xxxxx Xxxx. Xxxxx 000, Xxxxxx Xxxxx, XX
00000
or (ii) a 100% participation interest held by Xxxxx Xxxxxx Real Estate
Securities Inc., a Delaware corporation ("Xxxxx Xxxxxx"), pursuant to that
certain Mortgage Loan Participation Agreement between Xxxxx Xxxxxx and Seller
dated June 30, 1992; provided, however, that at no time shall any Mortgage Loan
be simultaneously subject to an interest under both subsections (i) and (ii)
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immediately above.
2. No documents evidencing or property securing a Mortgage Loan will be
subjected to any interest in favor of more than one of the Warehouse Lenders at
any one time.
3. Seller will not cause any Mortgage Loan to be funded to borrower with
monies obtained from any lender other than one of the Warehouse Lenders.
4. The potential interests disclosed in section 1 above, if any, comprise
all security or other interests relating to or affecting any and all Mortgage
Loans, which interests are held by any party other than the Mortgagor (as
defined in the Contract), Seller or Buyer. If no Warehouse Lender is listed in
section 1 above, there are no such interests held by a Warehouse Lender.
5. This Certification of Interest supersedes any other Certification,
Security interest Certification, Security Release Certification, or other
similar document provided by Seller to Buyer dated prior to the date hereof.
Seller :
WITNESS : XXXXXX MORTGAGE CORPORATION
/s/ XXXXX XXXXXX By: /s/ XXXXXX XXXXX (SEAL)
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Name: Xxxxxx Xxxxx
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Title: President
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Date: 1-7-93
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