Exhibit 10.1
SUBSEQUENT TRANSFER AGREEMENT
This SUBSEQUENT TRANSFER AGREEMENT dated as of June 30, 1998 (this
"Agreement") is entered into by and among FIRSTPLUS FINANCIAL, INC., as
Transferor and Servicer (the "Transferor" and "Servicer"), FIRSTPLUS
Investment Corporation, as Seller (the "Seller"), and FIRSTPLUS Home Loan
Owner Trust 1998-4, as Issuer (the "Issuer") and U.S. Bank National
Association, as Indenture Trustee and Co-Owner Trustee (the "Indenture
Trustee" and "Co-Owner Trustee"), with respect to that certain Loan Sale
Agreement dated as of June 1, 1998 (the "Loan Sale Agreement") by and between
the Transferor and the Seller, and that certain Sale and Servicing Agreement
dated as of June 1, 1998 (the "Sale and Servicing Agreement") by and among the
Seller, the Transferor and Servicer, the Issuer, the Indenture Trustee and the
Co-Owner Trustee;
WHEREAS, pursuant to the Loan Sale Agreement and the Sale and Servicing
Agreement, the Transferor, the Seller, the Issuer and the Indenture Trustee
agreed to the sale by the Transferor to the Seller, the sale by the Seller to
the Issuer and the pledge by the Issuer to Indenture Trustee of additional
Home Loans following the Closing Date; and
WHEREAS, the Transferor, the Seller, the Issuer and the Indenture Trustee
desire to enter into this Subsequent Transfer Agreement to reflect the sale,
transfer, assignment, set over, conveyance and grant of certain additional
Home Loans to the Issuer and their pledge to the Indenture Trustee.
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which
are mutually acknowledged, the Transferor, the Seller, the Issuer and the
Indenture Trustee hereby agree as follows:
Section 1. Subsequent Home Loans. The Transferor, the Seller, the Issuer
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and the Indenture Trustee hereby agree to the sale, transfer, assignment, set
over, conveyance and grant by the Transferor to the Seller, the sale,
transfer, assignment, set over, conveyance and grant by the Seller to the
Issuer and the Grant by the Issuer to the Indenture Trustee of the additional
home loans as described on Attachment 1 attached hereto (the "Subsequent Home
Loans") and the Home Loan Schedule attached hereto as Attachment 2 (the "Home
Loan Schedule"). The Home Loan Schedule shall supersede any Addition Notices
for any Subsequent Transfer Agreement insofar as the Home Loan Schedule
relates to the identification of Subsequent Home Loans transferred to the
Issuer. Capitalized terms used and not defined herein have the meanings
assigned to them in the Sale and Servicing Agreement, or if not defined
therein, in the Indenture, dated as of June 1, 1998, between the Issuer and
the indenture Trustee (the "Indenture").
Section 2. Sale by Transferor to Seller of Subsequent Home Loans. The
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Transferor does hereby sell, transfer, assign, set over, convey and Grant to
the Seller:
(i) all of the right, title and interest of the Transferor in and to
each Subsequent Home Loan identified on the Home Loan Schedule,
including without limitation, the Home Loans, the Servicer's Home
Loan Files and the Debt Instruments, and all payments on, and
proceeds with respect to, such Subsequent Home Loans received on and
after the applicable Cut-Off Date;
(ii) all right, title and interest of the Transferor in the Mortgages on
the properties securing the Subsequent Home Loans, if any, including
any Mortgaged Property acquired by or on behalf of the Seller or its
successor by foreclosure or deed in lieu of foreclosure or
otherwise;
(iii) all right, title and interest of the Transferor in and to any rights
in or proceeds from any insurance policies (including title
insurance policies) covering the Subsequent Home Loans, the related
Mortgaged Properties or the related Obligors and any amounts
recovered from third parties in respect of any Liquidated Home
Loans; and
(iv) all the proceeds of each of the foregoing.
With respect to each Subsequent Home Loan, the Transferor has delivered
or caused to be delivered to the Seller, each item set forth in Section 2.02
of the Sale and Servicing Agreement. The transfer to the Seller by the
Transferor of the Subsequent Home Loans identified on the Mortgage Loan
Schedule shall be absolute and is intended by the Transferor and the Seller to
constitute and to be treated as an absolute conveyance and sale by the
Transferor. The expenses and costs relating to the delivery of the Subsequent
Home Loans, this Agreement and the Sale and Servicing Agreement shall be borne
by the Transferor. Additional terms of the sale, including the purchase price,
are set forth on Attachment 1 attached hereto.
Section 3. Sale by Seller to Issuer of Subsequent Home Loans. Upon and
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simultaneous with the purchase by the Seller from the Transferor of the
Subsequent Home Loans, the Seller does hereby sell, transfer, assign, set
over, convey and Grant to the Issuer:
(i) all of the right, title and interest of the Seller in and to each
Subsequent Home Loan identified on the Home Loan Schedule, including
without limitation, the Home Loans, the Servicer's Home Loan Files
and the related Debt Instruments, and all payments on, and proceeds
with respect to, such Subsequent Home Loans received on and after
the applicable Cut-off Date;
(ii) all right, title and interest of the Seller in the Mortgages on the
properties securing the Subsequent Home Loans, if any, including any
Mortgaged Property acquired by or on behalf of the Issuer by
foreclosure or deed in lieu of foreclosure or otherwise;
(iii) all right, title and interest of the Seller in and to any rights in
or proceeds from any insurance policies (including title insurance
policies) covering the Subsequent Home Loans, the related Mortgaged
Properties or the related Obligors and any amounts recovered from
third parties in respect of any Liquidated Home Loans; and
(iv) all the proceeds of each of the foregoing.
With respect to each Subsequent Home Loan, the Seller has delivered or
caused to be delivered to the Issuer, each item set forth in Section 2.02 of
the Sale and Servicing Agreement. The transfer to the Issuer by the Seller of
the Subsequent Home Loans identified on the Mortgage Loan Schedule shall be
absolute and is intended by the Seller, the Transferor, the Issuer, the
Certificateholders and the Noteholders to constitute and to be treated as an
absolute conveyance and sale by the Seller. The expenses and costs relating to
the delivery of the Subsequent Home Loans, this Agreement and the Sale and
Servicing Agreement shall be borne by the Seller to the extent that the same
are not paid by the Transferor. Additional terms of the sale, including the
purchase price, are set forth on Attachment 1 attached hereto.
Section 4. Grant by Issuer to Indenture Trustee of Subsequent Home Loans.
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Upon and simultaneous with the purchase by the Seller from the Transferor
of the Subsequent Home Loans and the purchase by the Issuer from the Seller of
the Subsequent Home Loans, and pursuant to the terms of the Indenture, the
Issuer does hereby Grant to the Indenture Trustee:
(i) all of the right, title and interest of the Issuer in and to each
Subsequent Home Loan identified on the Home Loan Schedule, including
without limitation, the Home Loans, the Servicer's Home Loan Files
and the Debt Instruments, and all payments on, and proceeds with
respect to, such Subsequent Home Loans received on and after the
applicable Cut-off Date;
(ii) all right, title and interest of the Issuer in the Mortgages on the
properties securing the Subsequent Home Loans, if any, including any
Mortgaged Property acquired by or on behalf of the Issuer by
foreclosure or deed in lieu of foreclosure or otherwise;
(iii) all right, title and interest of the Issuer in and to any rights in
or proceeds from any insurance policies (including title insurance
policies) covering the Subsequent Home Loans, the related Mortgaged
Properties or the related Obligors and any amounts recovered from
third parties in respect of any Liquidated Home Loans; and
(iv) all the proceeds of each of the foregoing.
Section 5. Representations and Warranties; Conditions Precedent.
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(a) The Transferor hereby makes the representations, warranties and
covenants set forth in Sections 3.02 and 3.04 of the Sale and Servicing
Agreement with respect to the Subsequent Home Loans as of the date hereof and
the applicable Subsequent Transfer Date, and the Transferor hereby confirms
that with respect to the sale by the Transferor to the Seller of the
Subsequent Home Loans each of the conditions set forth in Sections 2.02 of the
Sale and Servicing Agreement for such sale have been satisfied as of the date
hereof and the applicable Subsequent Transfer Date. In addition, the
Transferor hereby reconfirms the accuracy of the representations and
warranties set forth in Section 3.03 of the Sale and Servicing Agreement with
respect to the Subsequent Home Loans as of the date hereof and the applicable
Subsequent Transfer Date.
In reliance upon the representations, warranties and covenants made by
the Transferor in the preceding subsection (a) and in the Officer's
Certificate of the Transferor dated as of the date hereof, the Seller hereby
affirms the representations, warranties and covenants set forth in Section
3.01 of the Sale and Servicing Agreement with respect to the Subsequent Home
Loans as of the date hereof and the applicable Subsequent Transfer Date, and
the Seller hereby confirms that each of the conditions set forth in Sections
2.02 and 3.04 of the Sale and Servicing Agreement are satisfied as of the date
hereof and the applicable Subsequent Transfer Date.
All terms and conditions of the Sale and Servicing Agreement are hereby
ratified and confirmed; provided however, that in the event of any conflict
the provisions of this Agreement shall control over the conflicting provisions
of the Sale and Servicing Agreement.
Section 6. Recordation of Agreement. This Agreement is subject to
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recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the
Transferor, at its expense, in the event such recordation materially and
beneficially affects the interests of the Noteholders or the
Certificateholders.
Section 7. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
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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.
Section 8. Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the Transferor, the Seller, the Issuer, the
Indenture Trustee and their respective successors and permitted assigns.
Section 9. Counterparts. This Agreement may be executed in one or more
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counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Transferor, the Seller, the Issuer and the
Indenture Trustee have caused this SUBSEQUENT TRANSFER AGREEMENT to be signed
by their respective officers thereunto duly authorized, as of the day and year
first above written.
FIRSTPLUS FINANCIAL, INC.,
as Transferor
By:
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Name:
Title:
FIRSTPLUS INVESTMENT CORPORATION,
as Seller
By:
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Name:
Title:
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: Wilmington Trustee Company as Owner Trustee
By:
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
as Indenture Trustee
By:
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Name:
Title:
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared , known to me to be
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the person and officer whose name subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said FIRSTPLUS FINANCIAL,
INC., a Texas corporation, and that he executed the same as the act of such
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
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, 199 .
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Notary Public, State of Texas
My commission expires:
. (printed name)
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared , known to me to be
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the person and officer whose name subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said FIRSTPLUS INVESTMENT
CORPORATION, a Nevada corporation, and that he executed the same as the act of
such corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
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, 199 .
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Notary Public, State of Texas
My commission expires:
. (printed name)
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THE STATE OF DELAWARE )
)
COUNTY OF NEWCASTLE )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared , known to me to be
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the person and officer whose name subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said FIRSTPLUS Home Loan
Owner Trust 1998-4, as Issuer, and that he executed the same as the act of
such association for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
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, 199 .
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Notary Public, State of Delaware
My commission expires:
. (printed name)
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THE STATE OF MINNESOTA )
)
COUNTY OF RAMSEY )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared , known to me to be
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the person and officer whose name subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said U.S. BANK NATIONAL
ASSOCIATION, as Indenture Trustee, and that she executed the same as the act
of such association for the purposes and consideration therein expressed, and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
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, 199 .
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Notary Public, State of Minnesota
My commission expires:
. (printed name)
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ATTACHMENT 1
1. Transfer Source of Subsequent Mortgage Loans: FIRSTPLUS FINANCIAL, INC.
Subsequent Transfer Date: June 30, 1998
Cut-Off Date: May 31, 1998
Aggregate Outstanding Principal Balance
of Subsequent Mortgage Loans: $77,808,017.14
Purchase Price for Subsequent
Mortgage Loans: $77,808,017.14
2. Transfer Source of Subsequent Mortgage Loans:
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Subsequent Transfer Date:
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Cut-Off Date:
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Aggregate Outstanding Principal Balances
of Subsequent Mortgage Loans:
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Purchase Price for Subsequent
Mortgage Loans:
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3. Transfer Source of Subsequent Mortgage Loans:
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Subsequent Transfer Date:
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Cut-Off Date:
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Aggregate Outstanding Principal Balances
of Subsequent Mortgage Loans:
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Purchase Price for Subsequent
Mortgage Loans:
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ATTACHMENT 2
Home Loan Schedule