EXECUTION COPY
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CUSTODY AGREEMENT
among
FIRSTPLUS FINANCIAL, INC.,
Borrower,
XXXXX XXXXXX REAL ESTATE SECURITIES INC.,
Lender
and
BANK ONE, TEXAS, N.A.,
as Custodian
Dated as of December 18, 1996
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TABLE OF CONTENTS
Page
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RECITALS................................................................... 1
SECTION 1. DEFINITIONS.................................................... 1
SECTION 2. APPOINTMENT OF CUSTODIAN....................................... 4
SECTION 3. DELIVERY OF MORTGAGE FILES TO CUSTODIAN........................ 4
SECTION 4. THE CUSTODIAN'S RECEIPT, EXAMINATION AND CERTIFICATION OF
MORTGAGE FILES AND ISSUANCE OF TRUST RECEIPT................... 7
SECTION 5. POSSESSION OF MORTGAGE FILES................................... 9
SECTION 6. RELEASE OF CUSTODIAN'S MORTGAGE FILES FOR SERVICING............ 10
SECTION 7. REVIEW AND DEPOSIT OF ADDITIONAL PLEDGED LOANS................. 11
SECTION 8. WAIVER BY THE CUSTODIAN........................................ 11
SECTION 9. RIGHT OF INSPECTION BY XXXXXX AND THIRD PERSON................. 12
SECTION 10. CUSTODIAN'S FEES AND EXPENSES.................................. 12
SECTION 11. TERMINATION OF AGREEMENT....................................... 12
SECTION 12. RESIGNATION AND REMOVAL OF CUSTODIAN........................... 13
SECTION 13. LIMITATION ON OBLIGATIONS OF THE CUSTODIAN..................... 14
SECTION 14. NOTICES........................................................ 14
SECTION 15. NO ASSIGNMENT OR DELEGATION BY THE CUSTODIAN................... 15
SECTION 16. CONTROLLING LAW................................................ 15
SECTION 17. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES................. 15
SECTION 18. ENTIRE AGREEMENT............................................... 16
SECTION 19. EXHIBITS....................................................... 16
SECTION 20. INDULGENCES, NOT WAIVERS....................................... 16
SECTION 21. TITLES NOT TO AFFECT INTERPRETATION............................ 16
SECTION 22. PROVISIONS SEPARABLE........................................... 16
SECTION 23. REPRESENTATIONS AND WARRANTIES OF THE CUSTODIAN................ 16
SECTION 24. COUNTERPARTS................................................... 17
EXHIBITS
EXHIBIT A - LETTER OF TRANSMITTAL.......................................... A-1
EXHIBIT B - NOTICE TO THE CUSTODIAN........................................ B-1
EXHIBIT C - TRUST RECEIPT.................................................. C-1
EXHIBIT D - NOTICE OF TERMINATION.......................................... D-1
EXHIBIT E - NOTICE OF DEFAULT CERTIFICATE.................................. E-1
EXHIBIT F - LETTER TO CUSTODIAN RE: XXXXXX'S TRUST RECEIPT................. F-1
EXHIBIT G - LETTER TO CUSTODIAN RE: ENDORSEE'S TRUST RECEIPT............... G-1
EXHIBIT H - REQUEST FOR RELEASE OF DOCUMENTS............................... H-1
EXHIBIT I - CONFIRMATION OF RESALE AND RECEIPT............................. I-1
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THIS CUSTODY AGREEMENT entered into as of December 18, 1996, by and
among FIRSTPLUS FINANCIAL, INC. (a/k/a Remodelers National Funding and herein
referred to as "Borrower"), XXXXX XXXXXX REAL ESTATE SECURITIES INC.
("Lender"), and BANK ONE, TEXAS, N.A. (the "Custodian"), recites and provides:
RECITALS
Xxxxxxxx and Xxxxxx have entered into that certain Loan and Security
Agreement dated as of December 18, 1996 (the "Loan Agreement").Borrower is
obligated to service the Pledged Loans pursuant to the terms and conditions
of the Loan Agreement.
Borrower desires to deposit with the Custodian all Pledged Notes and
Mortgages evidencing the Pledged Loans, together with the other documents
included in the Mortgage Files related to the Pledged Loans, to be held by
the Custodian as bailee and custodian for Lender and its assigns until
otherwise instructed by Xxxxxx, all in connection with Advances under the
Loan Agreement.
Lender may transfer or assign its interest in the Pledged Loans to
one or more Third Persons or Assignee, and the Custodian shall act as
custodian for such Third Persons or Assignee, as the case may be. Custodian
desires and is able to perform the duties and obligations as custodian for
Xxxxxx as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, and for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the indicated meanings unless the context or use
indicates another or different meaning and intent, the definitions of such
terms are equally applicable to the singular and the plural forms of such
terms, the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
section or other subdivision, and section references refer to sections of
this Agreement. All terms used herein and not defined shall have the
respective meanings set forth in the Loan Agreement.
"AGREEMENT" shall mean this Custody Agreement, as supplemented or
amended from time to time.
"ASSIGNEE" shall mean The Chase Manhattan Bank, N.A., as agent for
certain beneficiaries pursuant to certain repurchase transaction triparty
custody agreements.
"BORROWER" shall have the meaning set forth in the first paragraph
of this Agreement.
"BUSINESS DAY" shall mean any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the States of New York or
Texas or any day on which
a bank located in the State of New York or the New York Stock Exchange is
authorized or permitted to close for business.
"CONVENTIONAL PLEDGED LOAN" shall mean a Pledged Loan which is not
covered by FHA Insurance.
"CUSTODIAL REGISTER" shall mean the register maintained by Custodian
pursuant to Section 5(f), which reflects as to each Pledged Loan the Person
to whom the related Trust Receipt has been issued.
"CUSTODIAN" shall mean Bank One, Texas, N.A., or its successor
custodian.
"FHA" means the Federal Housing Administration and any successor
thereto.
"FHA INSURANCE" means the credit insurance provided by FHA pursuant
to Title I of the National Housing Act.
"FHA-INSURED LOAN" means any loan that is insured by FHA Insurance,
including without limitation any Unsecured Home Improvement Loan.
"LETTER OF TRANSMITTAL" shall have the meaning set forth in Section
3(b) of this Agreement.
"LOAN NUMBER" shall have the meaning set forth in Section 3(a) of
this Agreement.
"MORTGAGE" means the mortgage, deed of trust or other instrument
creating a first or second lien on an estate in fee simple interest in real
property securing the Pledged Note.
"MORTGAGE ASSIGNMENT" shall mean an assignment of the Mortgage in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage.
"MORTGAGE FILE" shall have the meaning set forth in Section 3(b)
hereof.
"PLEDGED NOTE" means the note or other evidence of indebtedness of a
Mortgagor and, with respect to any Pledged Loan other than a Type 4 Loan,
secured by a Mortgage.
"NOTICE LOAN SCHEDULE" shall have the meaning set forth in Section
5(b) of this Agreement.
"NOTICE OF TERMINATION" shall mean the notice substantially in the
form of Exhibit D hereto.
"OFFICER'S CERTIFICATE" shall mean a certificate signed by (i) an
officer or an employee, authorized to sign an officer's certificate, of
Borrower or other Person having officers, submitting a Mortgage File to the
Custodian or (ii) the closing attorney for the Pledged
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Loan. (The text of any particular Officer's Certificate may be stamped upon a
document constituting a portion of a Mortgage File so long as such stamped
text is signed by manual or facsimile signature by an officer or an employee
authorized to sign an Officer's Certificate.)
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"PLEDGED LOAN" means any Type 1 Loan, Type 2 Loan, Type 3 Loan or
Type 4 Loan that is pledged by Borrower and accepted by Lender in connection
with an Advance.
"PLEDGED LOAN SCHEDULE" shall mean a schedule of Pledged Loans
identifying each Pledged Loan by Xxxxxxxx's loan number, Xxxxxxxxx's name and
address (including the state and zip code) of the mortgaged property, whether
such Pledged Loan is secured by a first or junior lien (specifying the
priority of such junior lien) on the related Mortgaged Property, the
loan-to-value ratio, the appraised value of the Mortgaged Property, the
outstanding principal amount as of a specified date, the initial interest
rate borne by such Pledged Loan, the original principal balance thereof, the
current scheduled monthly payment of principal and interest, the maturity of
the related Pledged Note, the property type, the occupancy status, the
original term to maturity, whether the Pledged Loan is a Type 1 Loan, Type 2
Loan, Type 3 Loan or Type 4 Loan, whether the Pledged Loan is a Conventional
Pledged Loan or an FHA Insured Loan, and whether or not the Pledged Loan
(including the related Pledged Note) has been modified; PROVIDED, HOWEVER,
that the items of information set forth on the Pledged Loan Schedule may be
expanded or contracted by mutual agreement of Xxxxxx and Borrower.
"SELLER'S GUIDE" means (i) the "Seller/Servicer Guide" of Borrower,
a true and correct copy of which was previously provided to Lender by
Xxxxxxxx, and (ii) with respect to any Type 4 Loan, the applicable guidelines
of FHA.
"SERVICER" shall mean FirstPlus Financial, Inc. in its capacity as
servicer of the Pledged Loans.
"THIRD PERSON" shall mean a Person other than Xxxxxxxx, Lender or
the Custodian, which Person has acquired an interest in any Pledged Loans
from Lender and continues to have an interest in such Pledged Loans.
"TRUST RECEIPT" shall mean an instrument substantially in the form
of Exhibit C hereto.
"TYPE 1 LOAN" means any residential mortgage loan originated and
serviced by Xxxxxxxx in accordance with the Seller's Guide, which mortgage
loan has a loan-to-value ratio of not more than 125%.
"TYPE 2 LOAN" means any Type 1 Loan, Type 3 Loan or Type 4 Loan with
respect to which all of the related documents in the Mortgage File have not
been deposited with the Custodian on or prior to the related Advance Date.
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"TYPE 3 LOAN", means any residential mortgage loan originated and
serviced by Borrower in accordance with the Seller's Guide, which mortgage
loan has a loan-to-value ratio greater than 125% but less than 135%.
"TYPE 4 LOAN" means any Unsecured Home Improvement Loan that is an
FHA-Insured Loan with an original principal balance of not more than the
maximum amount permitted by Seller's Guide and the applicable FHA guidelines.
"UNSECURED HOME IMPROVEMENT LOAN" means those certain residential
home improvement loans that are not secured by a lien on the related property
more particularly referenced on an Pledged Loan Schedule to the related Trust
Receipt, which loans shall conform to the related requirements and standards
set forth in Seller's Guide.
"WET LOAN LIST" shall have the meaning set forth in Section 3(d) of
this Agreement.
"WET MORTGAGE LOAN" shall have the meaning set forth in Section 3(d)
of this Agreement.
SECTION 2. APPOINTMENT OF CUSTODIAN. Lender hereby appoints
Xxxxxxxxx, and Xxxxxxxxx hereby accepts its appointment, to act as the bailee
of and agent for Xxxxxx and its successors and assigns (including any Third
Person) for the purpose of taking custody of, and certifying receipt of,
Pledged Loans and the proceeds thereof or substitutions therefor. With
respect to each Pledged Loan, Xxxxxxxxx's appointment as Xxxxxx's bailee and
agent shall terminate upon receipt by Xxxxxx of all amounts of principal and
interest and any other amounts due and owing to Lender by the Borrower.
SECTION 3. DELIVERY OF MORTGAGE FILES TO CUSTODIAN.
(a) REPRESENTATIONS OF BORROWER. With respect to each Advance other
than an Advance secured by a Wet Mortgage Loan, Borrower represents that it
has, prior to the pledge of any Pledged Loan to Lender pursuant to the Loan
Agreement, delivered to the Custodian those documents designated in items (1)
- (7) below (to the extent applicable to such Pledged Loans). All documents
delivered to the Custodian shall have been placed by Borrower or its
representative in an appropriate file folder, properly secured, and clearly
marked with the name of the Mortgaged Property and the loan number (the "Loan
Number").
(b) MORTGAGE FILE. By delivery of a letter of transmittal
substantially in the form of Exhibit A hereto (each, a "Letter of
Transmittal"), Borrower will from time to time certify that it has delivered
and released to the Custodian the related Mortgage Files for the Pledged
Loans referred to in such Letter of Transmittal and has in its possession the
other documents with respect to the Pledged Loans identified in the pledged
loan schedule attached to the Letter of Transmittal as Schedule 1 (the
"Pledged Loan Schedule"). The Pledged Loan Schedule is the Pledged Loan
Schedule referred to in the Loan Agreement.
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"MORTGAGE FILE" means the following documents (all of which together
constitute an original mortgage file):
(1) the original Pledged Note, endorsed, "Pay to the order of _______,
without recourse" and signed, by facsimile or manual signature, in the name
of Borrower by an authorized officer. If the Pledged Note has been signed
by a Person on behalf of the Mortgagor, the original power of attorney or
other instrument that authorized and empowered such Person to sign or a
copy of such power of attorney together with an Officer's Certificate
certifying that such copy represents a true and correct copy and that such
original has been duly recorded in the appropriate records depository for
the jurisdiction in which the Mortgaged Property is located. To the extent
that there is no room on the face of the Pledged Note for endorsements, the
endorsement may be contained on an allonge, if the law by which such
Pledged Note is governed so permits. Such allonge shall be firmly affixed
to the Pledged Note so as to become a part thereof;
(2) the original of any loan agreement and guarantee(s) executed in
connection with the Pledged Note;
(3) with respect to any Pledged Loans other than a Type 4 Loan,
the original Mortgage, with evidence of recording thereon, or, if the
original Mortgage has not yet been returned from the recording office, a
copy of the original Mortgage together with an Officer's Certificate
(which may be a blanket Officer's Certificate of Borrower covering all
such Pledged Loans) certifying that the copy is a true copy of the
original of the Mortgage which has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged
Property is located, or a copy of the Mortgage certified by the public
recording office in those instances where the original Mortgage has been
lost, destroyed or retained by the public recording office; and if the
Pledged Note has been signed by a Person on behalf of the Mortgagor, the
original power of attorney or other instrument that authorized and
empowered such Person to sign or a copy of such power of attorney
together with an Officer's Certificate certifying that such copy
represents a true and correct copy and that such original has been duly
recorded in the appropriate records depository for the jurisdiction in
which the Mortgaged Property is located;
(4) with respect to any Pledged Loans other than a Type 4 Loan,
the original Mortgage Assignment assigned in blank for each Pledged
Loan, in form and substance acceptable for recording (except for the
name of the assignee) and signed in the name of the last endorsee by an
authorized officer;
(5) with respect to any Pledged Loans other than a Type 4 Loan,
the originals of all intervening assignments of mortgage, if any, with
evidence of recording thereon or copies thereof certified by the related
recording office or, if the original of any such assignment has not yet
been returned from the recording office, a copy of the original of any
such assignment without evidence of recording thereon together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Pledged Loans) certifying that the copy is a
true copy of the original of any such assignment which has been
delivered by such attorney or officer for recording in the
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appropriate recording office of the jurisdiction in which the Mortgaged
Property is located, or a copy of the intervening assignment certified
by the public recording office in those instances where the original
recorded intervening assignment has been lost, destroyed or retained by
the public recording office;
(6) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon or, if the original of any such agreement has not yet
been returned from the recording office, a copy of the original of any
such agreement without evidence of recording thereon together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Pledged Loans) certifying that the copy is a
true copy of the original of any such agreement which has been delivered
by such attorney or officer for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located,
or a copy of such agreement certified by the public recording office in
those instances where the original recorded agreement has been lost,
destroyed or retained by the public recording office; and
(7) with respect to any FHA Insured Loan, an original "loan
report", as such term is referenced in 201.30 of the Title I
Regulations, executed by Xxxxxxxx and dated in blank.
(c) SUPPLEMENTAL DOCUMENTS RELATING TO FHA INSURED LOANS. With
respect to any FHA Insured Loan, Borrower represents and warrants that, as of
the related Advance Date, either Borrower holds and will hold in trust or has
delivered to the Custodian the following documents and materials
(collectively, the "Supplemental Mortgage File"):
(i) if required by FHA regulations, a mortgagee policy of
title insurance insuring (or a commitment or binder to insure)
a Pledged Loan (together with such supporting documentation
obtained when the Mortgage was originated as may be of interest
to a purchaser thereof, e.g. surveys and title evidence);
(ii) all other pertinent servicing and liquidation
correspondence (e.g. inspection reports, interest rate or
payment changes, or foreclosure notices); and
(iii) disclosure statements evidencing compliance with all
federal and state disclosure laws and regulations applicable to
credit transactions to the extent required by law.
Borrower shall (A) segregate and hold, or cause to be segregated and held,
each such Supplemental Mortgage File in trust for the benefit of Lender, (B)
clearly mark or cause to be clearly marked each such Supplemental Mortgage
File to reflect Xxxxxx's interest therein and (C) promptly deliver or cause
to be promptly delivered, upon one Business Day's notice from Lender, to the
Custodian the Supplemental Mortgage File relating to each FHA Insured Loan
pledged to or for the account of Lender.
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(d) REQUIREMENTS RELATING TO WET MORTGAGE LOANS. Subject to the
terms of the Loan Agreement, Borrower may pledge, as part of the Pledged
Loans securing an Advance, a Type 1 Loan, Type 3 Loan or Type 4 Loan for
which all of the related documents in the Mortgage File have not been
deposited with the Custodian on or prior to the date of such Advance (a "Wet
Mortgage Loan"). In connection with any pledge or assignment of Xxxxxxxx's
interest in a Wet Mortgage Loan, Borrower shall, not later than 4:00 p.m. New
York City time one Business Day prior to the date of the related Advance,
deliver to the Custodian a Letter of Transmittal duly authorized, executed
and completed and, not later than the seventh (7th) day following the date of
the related Advance, shall deposit, or cause to be deposited, with the
Custodian all documents required to be delivered pursuant to Section 3(b) for
each such Wet Mortgage Loan with a copy of the Letter of Transmittal
previously delivered, which information shall also be delivered on computer
readable magnetic diskette or tape. The Custodian shall (i) deliver to
Lender, not later than 10:00 a.m. New York City time on the related Advance
Date, a detailed list of all Wet Mortgage Loans in a form acceptable to
Lender (each, a "Wet Loan List"); and (ii) notify Lender not later than 4:00
p.m. New York City time on the seventh (7th) day following the related
Advance Date if any documents described in Section 3(b) have not been
received with respect to any Wet Mortgage Loan. Borrower hereby represents,
warrants and covenants to Lender and the Custodian that it and any person or
entity acting on its behalf that has possession of any of the documents
described in this Section 3(c) for such Wet Mortgage Loan prior to the
deposit thereof with the Custodian will hold such documents in trust for the
Lender.
SECTION 4. The Custodian's Receipt, Examination and Certification of
MORTGAGE FILES AND ISSUANCE OF TRUST RECEIPT.
(a) The Custodian shall examine the documents received by it and
confirm, as of the date of the Trust Receipt, that on their faces:
(1) the Pledged Note and Mortgage each bears an original signature
or signatures purporting to be the signature or signatures of the Person
or Persons named as the maker and mortgagor or grantor or, in the case of
copies of the Mortgage permitted under Section 3, that such copies bear a
reproduction of such signature or signatures;
(2) (a) the principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the Pledged Note
and the original principal amount on the Pledged Loan Schedule; (b) the
Pledged Note term is the same as set forth on the Pledged Loan Schedule;
and (c) the Pledged Note coupon is the same as set forth on the Pledged
Loan Schedule;
(3) the Pledged Note bears original endorsements, by either manual
or facsimile signature, which complete the chain of ownership from the
original holder or payee to the owner of the related Trust Receipt;
(4) the original of the Mortgage Assignment and any intervening
mortgage assignment bears the original signature purporting to be the
signature of the named mortgagee or beneficiary (and any other necessary
party, including subsequent assignors)
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or in the case of copies permitted under Section 3, that such copies bear
a reproduction of such signature or signatures and that the Mortgage
Assignment and any intervening mortgage assignment complete the chain of
title from the originator to Borrower and from Borrower in blank;
(5) the power of attorney (if any), as specified in Sections 3(b)(1)
and 3(b)(3), (A) bears an original signature purporting to be the signature
of the maker of the Pledged Note and the mortgagor or grantor of the
Mortgage and (B) bears evidence that such power of attorney was recorded
in the appropriate records depository for the jurisdiction where the
Mortgaged Property is located or, in case of copies permitted under
Sections 3(b)(1) and (2)(b)(3), that such copies bear a reproduction of
such signatures and such evidence of recordation;
(6) if a Pledged Note or a Mortgage was executed by an
attorney-in-fact, the power of attorney specified in Sections 3(b)(1) and
3(b)(3) is included and conforms to the requirements of such section; and
(7) there exist the documents required by clause (7) of the Mortgage
File for each Pledged Loan that is an FHA Insured Loan.
(b) If the Custodian has determined that all the required
documents are included in the Mortgage Files delivered to it and that such
related documents on their faces satisfy the requirements enumerated in
Sections 3(a)(1) through 3(a)(7) hereof, the Custodian shall (i) sign a copy
of the related Letter of Transmittal and return the Letter of Transmittal to
Borrower, and (ii) remit to Lender or its designee a Trust Receipt with
respect to such Mortgage Files signed by the Custodian. If upon examination
of the documents included in any Mortgage File, the Custodian determines that
such documents do not satisfy the above requirements, or is unable to confirm
that such documents satisfy such requirements, the Custodian shall mark such
Pledged Loan as an exception on its Trust Receipt. Except as set forth in the
preceding sentence, the Trust Receipt of the Custodian with respect to each
Mortgage File shall be deemed to include a certification that the documents
reviewed by the Custodian appear regular on their face and relate to the
Pledged Loan described in the Mortgage File and are in the possession and
control of the Custodian.
(c) Under no circumstances shall the Custodian be obligated to
verify the authenticity of any signature on any of the documents received or
examined by it in connection with this Agreement or the authority or capacity
of any person to execute or issue any such document, nor shall the Custodian
be responsible for the value, form, substance, validity, perfection,
priority, effectiveness or enforceability of any of such documents.
(d) Any provision of this Agreement to the contrary notwithstanding,
Borrower shall notify the Custodian of the need to examine a Mortgage File and
deliver a related Trust Receipt not less than forty-eight (48) hours prior to
the date on which such Trust Receipt is required to be delivered.
(e) With respect to any Trust Receipt delivered to Lender. hereunder,
the Custodian shall revise its own internal books and records from time to time
to reflect its receipt
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or release of Pledged Loans under the terms of this Agreement so that the
applicable Pledged Loan Schedule for any such Trust Receipt shall always
accurately reflect the Pledged Loans held by the Custodian under this Agreement.
SECTION 5. POSSESSION OF MORTGAGE FILES.
(a) POSSESSION OF MORTGAGE FILES ON BEHALF OF XXXXXX. The Custodian
shall segregate and retain possession and custody of the Mortgage Files for
the exclusive use and benefit of Lender and as agent and bailee of and
custodian for Lender for all purposes until otherwise notified by Lender
pursuant to subsection (b) hereof. The Custodian shall also make appropriate
notations in the Custodian's books and records reflecting that the Mortgage
Files are owned by Lender unless otherwise notified by Lender pursuant to
subsection (b) hereof. The Custodian shall not release any portion of the
Mortgage Files to Borrower or to any other party without the prior written
authorization of the registered holder of the Trust Receipt.
(b) POSSESSION OF MORTGAGE FILES ON BEHALF OF ASSIGNEE. Lender
hereby notifies Custodian that Xxxxxx shall assign, as of each Advance Date,
all of its right, title and interest in and to all Pledged Loans pledged by
Borrower pursuant to the Loan Agreement and all rights of Lender under the
Loan Agreement (and this Agreement) in respect of such Pledged Loans
represented thereby to Assignee. Borrower hereby irrevocably consents to
such assignment. Assignment by Xxxxxx of the Pledged Loans as provided in
this Section 5(b) shall not release Lender from its obligations otherwise
under this Agreement. Lender's agreements with each Assignee will specify
that the Assignee cannot issue instructions regarding the Pledged Loans or
Mortgage Files unless Lender has defaulted on Lender's obligations to such
Assignee. Accordingly, the Custodian may not act on requests from a Assignee
to withdraw or otherwise dispose of Pledged Loans unless the Assignee
delivers to the Custodian an executed Notice of Default Certificate in the
form of Exhibit E hereto. The Custodian shall be entitled to presume
conclusively that the Notice of Default Certificate is properly executed and
that when delivered to the Custodian an Event of Default exists under Xxxxxx's
agreement with its Assignee.
(c) POSSESSION OF MORTGAGE FILES ON BEHALF OF THIRD PERSONS. The
Custodian acknowledges that Lender may transfer its interest in the Pledged
Loans to a Third Person. Upon receipt of written notice from Lender,
substantially in the form of Exhibit B hereto, that Lender has transferred
its interest in the Pledged Loans identified on a schedule to such notice
(the "Notice Loan Schedule") to a Third Person together with the Trust
Receipt for amendment of the Schedule attached thereto, the Custodian will
promptly issue a Trust Receipt to such Third Person and shall issue an
amended Trust Receipt to Lender, each of which will reflect the transfer of
Xxxxxx's interest in certain Pledged Loans to such Third Person. The notice
sent by Lender to the Custodian shall be in substantially the form of Exhibit
B hereto and shall (i) specify the name of the Third Person, (ii) specify the
address of the Third Person, which may be an address in care of Lender and
(iii) have attached the Notice Loan Schedule. Upon receipt of any such notice
from Lender, the Custodian shall (a) segregate and retain possession and
custody of the Mortgage Files with respect to the Pledged Loans in the Notice
Loan Schedule as agent and bailee of and custodian for such Third Person, and
(b) make appropriate notations in the Custodian's books and records
reflecting that the Mortgage Files identified in the Notice Loan Schedule are
owned by such Third Person. The Custodian shall segregate and maintain
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continuous custody of all Mortgage Files for the benefit of the Person to whom
it has issued a Trust Receipt.
(d) AGING REPORTS. Custodian shall promptly notify Lender if any
Pledged Loan has been subject to this Agreement for more than 180 days. In
addition, Custodian shall provide to Lender, not later than the 15th day of
each month during the term of this Agreement, with a detailed listing of all
Pledged Loans relating to any outstanding Trust Receipt, which report shall
identify (i) the origination date of each such Pledged Loan and (ii) the date
that the Mortgage File relating to such Pledged Loan was originally certified
by Custodian and pledged to Lender.
(e) Upon surrender of the Trust Receipt by Xxxxxx to the Custodian,
Xxxxxx may issue instructions regarding the Pledged Loans designated in the
applicable Trust Receipt, including instructions to withdraw Pledged Loans.
(f) In the event a Trust Receipt is lost, destroyed or otherwise
unavailable for surrender to the Custodian, Xxxxxx will present to the
Custodian documentation in the form attached as Exhibit F or Exhibit G
hereto. Upon receipt by the Custodian of such documentation, Xxxxxx will
have the right to issue instructions regarding the Pledged Loans covered by a
Trust Receipt without surrender of the related Trust Receipt.
(g) The Custodian understands that Xxxxxx may need to examine Pledged
Loans subject to a Trust Receipt on a periodic basis. Such examination shall
take place on the premises of the Custodian. Lender will give the Custodian
two (2) Business Days' notice before Xxxxxx makes an examination. Lender's
agreements with each Assignee will grant Lender the right to make such
examinations.
(h) The Custodian shall cause to be kept at its corporate trust
office records in the form, scope and substance of a register (the "Custodial
Register") in which, subject to such reasonable regulations as it may
prescribe, the Custodian shall reflect the ownership of Pledged Loans as
confirmed by Trust Receipts as herein provided. The Custodial Register shall
be deemed to contain proprietary information and only Custodian and Lender
shall have access to such information.
(i) With respect to the repayment of any Advance by Borrower under
the Loan Agreement, the interest of any Third Person or Assignee in any such
Pledged Loan shall automatically terminate simultaneously with the payment to
Lender of principal and interest and any other amounts due and owing to
Lender by the Borrower under the Loan Agreement, and any such interest shall
be deemed to have been transferred to Lender as of such time, except with
respect to any Pledged Loans delivered to a Third Person or Assignee pursuant
to the Notice of Default Certificate attached hereto as Exhibit E. Pursuant
to the preceding sentence, the interest of any Third Person shall automatically
terminate irrespective of whether such Third Person or Assignee receives the
appropriate payment for such Pledged Loan.
SECTION 6. RELEASE OF CUSTODIAN'S MORTGAGE FILES FOR SERVICING.
From time to time and as appropriate for the servicing of any of the Pledged
Loans by Xxxxxxxx, the Custodian is hereby authorized, upon written request
and receipt of Borrower and consent and
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acknowledgement of Lender (to the extent required by Exhibit H) in the form
of Exhibit H, to release to Borrower or its designee the related Mortgage
File, or any documents contained therein, set forth in such receipt to
Borrower. All documents so released to Borrower or its designee shall be held
by it in trust for the benefit of Lender and Third Person from time to time.
Borrower or its designee shall return to the Custodian the Mortgage File or
such documents when Xxxxxxxx's need therefor in connection with servicing no
longer exists but in no event later than ten (10) Business Days after their
release by the Custodian as provided herein.
Upon the payment in full of any Pledged Loan by the mortgagor, and
upon receipt by the Custodian of Xxxxxxxx's request for release and
acknowledgement by Xxxxxx in the form of Exhibit H, the Custodian shall
promptly release the related Mortgage File to Borrower.
Xxxxxxxx agrees that, at the time any request for release of Mortgage
Files is made to the Custodian under this Agreement, Lender shall be so
notified and a copy of any written request for release shall be furnished to
Lender. Upon its receipt of any released Mortgage Files, Borrower shall so
notify Lender.
SECTION 7. REVIEW AND DEPOSIT OF ADDITIONAL PLEDGED LOANS.
(a) If, pursuant to the Loan Agreement, Borrower is required to
deliver additional Pledged Loans to the Custodian to cure a Margin Deficit or
if Borrower and Lender agree to cause additional Pledged Loans to become subject
to the Loan Agreement ("Additional Pledged Loans"), the Custodian shall retain
possession and custody of the Mortgage Files relating thereto pursuant to
Section 5 hereof and, upon receipt and review thereof, shall transmit to Lender
a Trust Receipt that shall supersede any Trust Receipt bearing an earlier date
and have attached thereto a complete Pledged Loan Schedule revised so as to
give effect to the Advance contemplated by such Trust Receipt.
(b) Two (2) days prior to the delivery of any Additional Pledged
Loans, Borrower will advise the Custodian whether the Custodian will be
required to review any Additional Pledged Loans Borrower undertakes to use
its best efforts to make available for review any such Additional Pledged
Loans as soon as is reasonably possible. Upon receipt thereof, the Custodian
shall perform its review of the Mortgage Files relating to any Additional
Pledged Loans in the manner contemplated by Section 5 hereof.
(c) Borrower covenants and agrees to provide to the Custodian at
the time Borrower delivers any Additional Pledged Loans under this Agreement,
and at the time any Pledged Loans are transferred to Borrower pursuant to
Section 5(c) hereof, a revised Pledged Loan Schedule reflecting current
information with respect to all Pledged Loans subject to the applicable Trust
Receipt, after giving effect to the related delivery or transfer.
SECTION 8. WAIVER BY THE CUSTODIAN. Notwithstanding any other
provisions of this Agreement, the Custodian shall not at any time exercise or
seek to enforce any claim, right or remedy, including any statutory or common
law rights of set-off, if any, that the Custodian might otherwise have
against all or any part of a Mortgage File or the proceeds thereof. The
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Custodian warrants that it currently holds, and during the existence of this
Agreement shall hold, no adverse interest, by way of a security interest or
otherwise, in any Pledged Loan.
SECTION 9. RIGHT OF INSPECTION BY XXXXXX AND THIRD PERSON. Upon
reasonable notice to the Custodian (which in no event shall be less than two
(2) Business Days notice), the Person or Persons for whom the Custodian is
acting as custodian, or their duly authorized representatives, may at any
time, during ordinary business hours, inspect and examine the Mortgage Files
in the possession and custody of the Custodian at such place or places where
such Mortgage Files are deposited.
SECTION 10. CUSTODIAN'S FEES AND EXPENSES. The Custodian hereby
acknowledges that Xxxxxxxx has agreed to pay all fees due and owing to, and
except as otherwise provided herein, any expenses incurred by the Custodian
under this Agreement. The fees due to the Custodian for its services
hereunder shall be as set forth in a separate letter agreement between the
Custodian and Borrower. In addition to the fees referred to in the two
foregoing sentences, Xxxxxxxx has agreed to pay all out-of-pocket expenses
incurred by the Custodian in connection with the review of each Mortgage File
by it or its agent and its issuance of a Trust Receipt relating thereto.
Neither Lender nor any Third Person shall have any liability or obligation to
pay any such fees or expenses, and the duties of the Custodian hereunder
shall be independent of Xxxxxxxx's performance of its obligations to the
Custodian in respect of such fees and expenses.
SECTION 11. TERMINATION OF AGREEMENT. This Agreement shall become
effective on and as of the date hereof and shall terminate upon the earlier
of (i) the Custodian's receipt of written Notice of Termination signed by the
Person or all of the Persons to whom the Custodian has issued Trust Receipts
and on whose behalf the Custodian is acting as agent, bailee and custodian,
(ii) the removal of all Mortgage Files from the possession of the Custodian
pursuant to the instructions of the Person or Persons entitled to request
such removal pursuant to this Agreement. The Custodian shall be entitled to
rely, and shall be protected in relying, on any such Notice of Termination
delivered to it by such Person or Persons and (iii) if the Advance relating
to any Pledged Loan is repaid by Borrower to Lender, the receipt by Lender of
principal and interest and any other amounts due and owing to Lender by the
Borrower under the Loan Agreement. If this Agreement terminates with respect
to any Pledged Loan by operation of clause (i) above, the Custodian shall
deliver the related Mortgage File then subject to this Agreement to the
Person indicated in the Notice of Termination. If the Advance relating to
any Pledged Loan is repaid by Borrower to Lender pursuant to clause (iii)
above, then Lender shall execute and deliver to the Custodian a document in
substantially the form of Exhibit I which confirms the receipt of principal
and interest and any other amounts due and owing to Lender relating to the
Pledged Loan and the termination and release of all of Lender's right, title
and interest in such Pledged Loan, and the Custodian upon receipt of such
document shall deliver the related Mortgage File for such Pledged Loan to
Borrower or such other Person as Borrower so directs. Upon such termination
the Custodian shall deliver all Mortgage Files then subject to this Agreement
to the Person indicated in such Notice of Termination or if no such Person is
indicated, then to the Person or Persons to whom the Custodian has issued
Trust Receipts and for whom the Custodian is acting on such date and the
Custodian shall endorse the Pledged Notes without recourse, representation
and warranties and execute mortgage assignments
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pursuant to any instruction by the Person on whose behalf the Custodian is
acting as agent and bailee pursuant to this Agreement.
SECTION 12. RESIGNATION AND REMOVAL OF CUSTODIAN.
(a) RESIGNATION. The Custodian shall have the right, with or without
cause, to resign as the Custodian under this Agreement upon sixty (60) days'
prior written notice to Xxxxxxxx, Xxxxxx and, to the extent of its interest,
any Third Person. Following any such resignation, the Custodian shall continue
to act as the "Custodian" under this Agreement until it delivers the Mortgage
Files to a duly appointed successor Custodian as provided in (c) below, if any,
or to any designee specified by Lender or any Third Person, as applicable.
(b) REMOVAL. Xxxxxx and, to the extent of its interest, any Third
Person may remove and discharge the Custodian from the performance of its
duties under this Agreement, by providing five (5) days' written notice to
the Custodian, signed jointly by Xxxxxx and a majority in interest of
(calculated with reference to the face value of the Pledged Loans) any Third
Person or Persons with any interest in the Pledged Loans, as evidenced by the
holding of a Trust Receipt, with a copy to Borrower. Following any such
removal, the Custodian shall continue to act as the "Custodian" under this
Agreement until it delivers the Mortgage Files to a duly appointed successor
Xxxxxxxxx as provided in (c) below, if any, or to any designee specified by
Lender or any Third Person, as applicable.
(c) APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF PLEDGED LOANS.
Upon resignation or removal of the Custodian, Lender and, to the extent of
its interest and if permitted by Section 5 hereof, any Third Person shall
have 60 days in which to appoint and designate a successor to take possession
of their respective Mortgage Files or select one or more designees to take
possession thereof. Upon receipt of written direction regarding the foregoing
from Lender and any Third Person with respect to the Pledged Loans in which
they have an interest, as applicable, the Custodian shall deliver all Mortgage
Files to the person so designated within 10 days following delivery to the
Custodian of such written notice. If a successor Xxxxxxxxx is appointed, the
Custodian shall deliver the Mortgage Files in accordance with the written
instructions of Xxxxxx and a majority in interest of (calculated with reference
to the face value of the Pledged Loans) Third Person having interests in the
Pledged Loans to the extent such Third Person are permitted to take action
with respect thereto under Section 5 hereof setting forth the name and address
of the successor Custodian. If Lender and, to the extent of its interest, any
such Third Person, fail to jointly designate a successor Custodian or specify
one or more designees within such 60-day period, then the Custodian shall
deliver possession and custody to Xxxxxx and, if otherwise permitted under
Section 4 hereof, any Third Person, of their respective Mortgage Files, as
applicable, at the address specified in the Custodian's records. The Custodian
shall, as part of the transfer of the Mortgage Files, deliver the Mortgage
Assignment for each Pledged Loan in recordable form and shall endorse the
Pledged Note without recourse, representation and warranties in accordance
with Xxxxxx's or the applicable Third Person's instructions. Any successor
Custodian hereunder shall be a financial institution whose deposits are insured
by FDIC, have a net worth of not less than $10,000,000 and shall have secure
vault storage facilities located in the State of New York or such other State as
Lender and Borrower may agree, in which the Mortgage Files are to be retained.
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SECTION 13. LIMITATION ON OBLIGATIONS OF THE CUSTODIAN. The
Custodian shall have no duties or obligations other than those specifically
set forth herein, and no further duties or obligations shall arise by
implication or otherwise. The Custodian agrees to use its best judgment and
good faith in the performance of such obligations and duties and shall incur
no liability to Borrower for its acts or omissions hereunder, except as may
result from its gross negligence or willful misconduct. The Custodian shall
also be entitled to rely (and shall be protected in relying) upon written
advice of its legal counsel and to rely upon any written notice, document,
correspondence, request or directive received by it from Lender, any Third
Person (if applicable), or Borrower, as the case may be, that the Custodian
believes to be genuine and to have been signed or presented by the proper and
duly authorized officer or representative thereof, and shall not be obligated
to inquire as to the authority or power of any Person so executing or
presenting such documents or as to the truthfulness of any statements set
forth therein. No provision of this Agreement shall require the Custodian to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity is not
reasonably assured to it. Borrower agrees to indemnify, defend and hold the
Custodian harmless from and against any claim, legal action, liability or
loss that is initiated against or incurred by the Custodian, including court
costs and reasonable attorney's fees and disbursements, and all of the
Custodian's other cost, damage or expense incurred in connection with the
Custodian's performance of its duties under this Agreement, but excluding any
such claim, legal action, liability, loss, cost, damage or expense caused by
Custodian's gross negligence or willful misconduct.
The Custodian shall at its own expense maintain at all times during
the existence of this Agreement and keep in full force and effect (a)
fidelity insurance, (b) theft and loss of documents insurance, (c) forgery
insurance, and (d) errors and omissions insurance. All such insurance shall
be in amounts, with standard coverage and subject to deductibles, as are
customary for insurance typically maintained by banks which act as the
Custodian in similar Advances. The Custodian shall, upon written request,
provide to Borrower, or to any other Person as Borrower shall direct, a
certificate signed by an authorized officer of the Custodian certifying that
the foregoing insurance policies are in full force and effect. The Custodian
shall use its best efforts to ensure that such insurance shall not terminate
prior to receipt by Lender by registered mail of 30 days' prior written
notice thereof.
SECTION 14. NOTICES. Any notice, demand or consent required or
permitted by this Agreement shall be in writing and shall be effective and
deemed delivered only when received by the party to which it is sent. Any such
notice, demand or consent shall be delivered in person or transmitted by a
recognized private courier service or deposited with the United States Postal
Service, certified mail, postage prepaid, return receipt requested, addressed
as follows, unless such address is changed by written notice hereunder:
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If to Borrower:
FirstPlus Financial, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy at the same address to:
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Lender:
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Custodian:
Bank One, Texas, N.A.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxx
Mortgage Finance Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 15. NO ASSIGNMENT OR DELEGATION BY THE CUSTODIAN. The
Custodian shall not assign, transfer, pledge or grant a security interest in
any of its rights, benefits or privileges hereunder nor delegate or appoint
any other person to perform or carry out any of its duties, responsibilities
or obligations under this Agreement; any act or instrument purporting to
effect any such assignment, transfer, pledge, grant, delegation or appointment
shall be void.
SECTION 16. CONTROLLING LAW. This Agreement and all questions
relating to validity, interpretation, performance and enforcement shall be
governed by and construed, interpreted and enforced in accordance with the
laws of the State of New York, without regard to any New York or other
conflict-of-law provisions.
SECTION 17. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES. This
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors and permitted
15
assigns, and shall not be deemed to create or confer any legal or equitable
right, remedy or claim upon any other person whatsoever except a Third Person
to the extent rights are explicitly conferred on any one or more Third Person
pursuant to this Agreement.
SECTION 18. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any
nature whatsoever with respect to the subject matter hereof, including any
prior custody agreements. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing signed by Xxxxxx, Borrower and the Custodian.
SECTION 19. EXHIBITS. All Exhibits referred to herein or attached
hereto are hereby incorporated by reference into, and made a part of, this
Agreement.
SECTION 20. INDULGENCES, NOT WAIVERS. Neither the failure nor any
delay on the part of a party hereto to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the
parties asserted to have granted such waiver.
SECTION 21. TITLES NOT TO AFFECT INTERPRETATION. The titles of
sections and subsections contained in this Agreement are for convenience
only, and they neither form a part of this Agreement nor are they to be used
in the construction or interpretation hereof.
SECTION 22. PROVISIONS SEPARABLE. The provisions of this Agreement
are independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other provision or provisions may be invalid or unenforceable
in whole or in part.
SECTION 23. REPRESENTATIONS AND WARRANTIES OF THE CUSTODIAN. The
Custodian represents, warrants to, and covenants with Lender that on the date
hereof, and on the date of the issuance of any Trust Receipt by the Custodian:
(1) The Custodian is (i) a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and (ii) duly qualified and in good standing and
in possession of all requisite authority, power, licenses, permits and
franchises in order to execute, deliver and comply with its obligations
under the terms of this Agreement;
(2) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and the execution
and delivery of this Agreement by the Custodian in the manner contemplated
herein and the performance of
16
and compliance with the terms hereof by it will not (i) violate, contravene
or create a default under any applicable laws, licenses or permits to the
best of its knowledge, or (ii) violate, contravene or create a default
under any charter document or bylaw of the Custodian or to the best of the
Custodian's knowledge any contract, agreement, or instrument to which the
Custodian or by which any of its property may be bound and will not result
in the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its property;
(3) The execution and delivery of this Agreement by the Custodian
and the performance of and compliance with its obligations and covenants
hereunder do not require the consent or approval of any governmental
authority or, if such consent or approval is required, it has been
obtained;
(4) This Agreement, and the original Trust Receipt issued hereunder,
when executed and delivered by the Custodian will constitute valid, legal
and binding obligations of the Custodian, enforceable against the Custodian
in accordance with their respective terms, except as the enforcement
thereof may be limited by applicable debtor relief laws and that certain
equitable remedies may not be available regardless of whether enforcement
is sought in equity or at law;
(5) Custodian does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in
this Agreement;
(6) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened which, if determined adversely to
Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or obligations
of Custodian thereunder, or which would have a material adverse effect
on the financial condition of Custodian;
(7) Upon written request of a Lender or any Third Person, and
assurance reasonably satisfactory to Custodian that its costs of doing
so will be timely reimbursed and that Custodian will receive reasonable
compensation (in addition to the compensation provided for elsewhere in
this Agreement) for doing so, Custodian shall take such steps as may be
reasonably requested by Lender or any Third Person (consistent with
Custodian's undertakings hereunder) to protect or maintain any interest
in any real property securing the Pledged Loan owned by such owner and
any insurance applicable thereto.
SECTION 24. COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each
of which counterpart shall be deemed to be an original, and such counterparts
shall constitute and be one and the same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date set forth above.
FIRSTPLUS FINANCIAL, INC.
By: /s/
----------------------------------
Name:
Title:
BANK ONE, TEXAS, N.A.,
as Custodian
By: /s/
----------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: /s/
----------------------------------
Name:
Title:
18
