[EXECUTION COPY]
CUSTODY AGREEMENT
among
FIRSTPLUS FINANCIAL, INC.,
Seller
BEAR STEARNS HOME EQUITY TRUST 1996-1,
Buyer
and
BANK ONE, TEXAS, N.A.,
as Custodian
Dated as of May 10, 1996
______________________________________________________________________________
TABLE OF CONTENTS
Page
RECITALS ........................................................... 1
SECTION 1. Definitions.............................................. 1
SECTION 2. Delivery of Mortgage Files to Custodian.................. 4
SECTION 3. The Custodian's Receipt, Examination and
Certification of Mortgage Files and Issuance
of Trust Receipt....................................... 6
SECTION 4. Possession of Mortgage Files............................. 8
SECTION 5. Release of Custodian's Mortgage Files for
Servicing.............................................. 10
SECTION 6. Review and Deposit of Additional Mortgage
Loans.................................................. 11
SECTION 7. Waiver by the Custodian.................................. 11
SECTION 8. Right of Inspection by Buyer and Third
Persons................................................ 11
SECTION 9. Custodian's Fees and Expenses............................ 12
SECTION 10. Termination of Agreement................................. 12
SECTION 11. Resignation and Removal of Custodian..................... 13
SECTION 12. Limitation on Obligations of the Custodian............... 14
SECTION 13. Notices.................................................. 15
SECTION 14. No Assignment or Delegation by the Custodian............. 16
SECTION 15. Controlling Law.......................................... 16
SECTION 16. Agreement for the Exclusive Benefit of Parties........... 16
SECTION 17. Entire Agreement......................................... 16
SECTION 18. Exhibits................................................. 16
SECTION 19. Indulgences, Not Waivers................................. 17
SECTION 20. Titles Not to Affect Interpretation...................... 17
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SECTION 21. Provisions Separable..................................... 17
SECTION 22. Representations and Warranties of the
Custodian.............................................. 17
SECTION 23. Limited Role of Trustee; Successor
Trustee................................................ 18
SECTION 24. Counterparts............................................. 19
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: BUYER'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 May 10, 1996, by
and among FIRSTPLUS FINANCIAL, INC. (a/k/a Remodelers National
Funding and herein referred to as "Seller"), BEAR STEARNS HOME
EQUITY TRUST 1996-1 ("Buyer"), and BANK ONE, TEXAS, N.A. (the
"Custodian"), recites and provides:
RECITALS
Seller and Buyer have entered into a Master Repurchase
Agreement dated as of May 10, 1996 and a Request/Confirmation
between Seller and Buyer with respect to each transaction
thereunder. The Master Repurchase Agreement and the Request/
Confirmations are hereinafter referred to collectively as the
"Repurchase Agreement."
Seller is obligated to service the Mortgage Loans pursuant
to the terms and conditions of the Repurchase Agreement.
Seller desires to deposit with the Custodian all Notes and
Mortgages evidencing the Mortgage Loans, together with the other
documents included in the Mortgage Files related to the Mortgage
Loans, to be held by the Custodian as custodian for Buyer and its
assigns until otherwise instructed by Buyer, all in connection
with transactions under the Repurchase Agreement (each a
"Transaction").
Buyer may transfer its interest in the Mortgage Loans to one
or more Third Persons and the Custodian shall act as custodian
for such Third Persons.
Custodian desires and is able to perform the duties and
obligations as custodian for Buyer 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
Repurchase Agreement.
"AGREEMENT" shall mean this Custody Agreement, as
supplemented or amended from time to time.
"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 the Commonwealth of Massachusetts or any
day on which a bank located in the State of New York or the
Commonwealth of Massachusetts or the New York Stock Exchange is
authorized or permitted to close for business.
"CONVENTIONAL MORTGAGE LOAN" shall mean a Mortgage Loan
which is not covered by FHA Insurance.
"CUSTODIAL REGISTER" shall mean the register maintained by
Custodian pursuant to Section 4 (f), which reflects as to each
Mortgage Loan the Person to whom the related Trust Receipt has
been issued.
"CUSTODIAN" shall mean Bank One, Texas, N.A., or its
successor custodian.
"HEL" shall mean a home equity loan consisting of a Note
secured by a Mortgage.
"HIL" shall mean a home improvement loan consisting of a
Note secured.by a Mortgage.
"LENDER" shall mean the original lender as set forth in the
Note, or any successor or assignee under such Note.
"LOAN NUMBER" shall have the meaning set forth in Section
2(a) of this Agreement.
"LOAN SCHEDULE" shall mean a schedule of Mortgage Loans
identifying each Mortgage Loan by Seller's loan number,
Mortgagor's name and address (including the state and zip code)
of the mortgaged property, whether such Mortgage 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
if such Mortgage Loan is a HEL, the outstanding principal amount
as of a specified date, the initial interest rate borne by such
Mortgage Loan, the original principal balance thereof, the
current scheduled monthly payment of principal and interest, the
maturity of the related Note, the property type, the occupancy
status, the appraised value if such Mortgage Loan is a HEL having
an original principal balance in excess of $10,000, the original
term to maturity, whether the Mortgage Loan is a HEL or a HIL,
whether the Mortgage Loan is a Title I Mortgage Loan or a
Conventional Mortgage Loan and whether or not the Mortgage Loan
(including the related Note) has been modified; PROVIDED,
HOWEVER, that the items of information set forth on the Loan
Schedule may be expanded or contracted by mutual agreement of
Buyer and Seller; and PROVIDED FURTHER, HOWEVER, that the
appraised value for any HEL may be determined from a real estate
broker's price opinion or a drive-by appraisal.
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"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 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
2(b) hereof.
"MORTGAGE LOAN" shall mean a HEL or a HIL, as applicable.
"MORTGAGED PROPERTY" shall mean the real property securing
repayment of a Mortgage Loan.
"MORTGAGOR" shall mean the obligor on a Note.
"NOTE" shall mean any promissory note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a
Mortgage Loan.
"NOTICE LOAN SCHEDULE" shall have the meaning set forth in
Section 4(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 Seller or other Person having officers,
submitting a Mortgage File to the Custodian or (ii) the closing
attorney for the Mortgage 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.
"REQUEST/CONFIRMATION" shall mean a written confirmation of
a Transaction substantially in the form attached as an exhibit to
the Repurchase Agreement.
"SELLER" shall have the meaning set forth in the first
paragraph of this Agreement.
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"SERVICER" shall mean FirstPlus Financial, Inc. in its
capacity as servicer of the Mortgage Loans.
"THIRD PERSON" shall mean a Person other than Seller, Buyer
or the Custodian which Person has acquired an interest in any
Mortgage Loans from Buyer and continues to have an interest in
such Mortgage Loans.
"TITLE I MORTGAGE LOAN" shall mean a Mortgage Loan that has
been or will be registered by FHA for FHA Insurance under the
Title I Program.
"TITLE I PROGRAM" shall mean the mortgage insurance program
authorized pursuant to the National Housing Act of 1934, as
amended.
"TRUST RECEIPT" shall mean an instrument substantially in
the form of Exhibit C hereto.
SECTION 2. DELIVERY OF MORTGAGE FILES TO CUSTODIAN.
(a) REPRESENTATIONS OF SELLER. With respect to each
Transaction, Seller represents that it has, prior to the sale of
any Mortgage Loans to Buyer pursuant to the Repurchase Agreement,
delivered to the Custodian those documents designated in items 1-
7 below (to the extent applicable to such Mortgage Loans) . All
documents delivered to the Custodian shall have been placed by
Seller 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) By delivery of a Letter of Transmittal, substantially in
the form of Exhibit A hereto, Seller will from time to time
certify that it has delivered and released to the Custodian the
related Mortgage Files for the Mortgage Loans referred to in such
Letter of Transmittal and has in its possession the other
documents with respect to the Mortgage Loans identified in the
mortgage loan schedule attached to the Letter of Transmittal as
Schedule 1 (the "Loan Schedule"). The Loan Schedule is the Loan
Schedule referred to in the Repurchase Agreement.
"MORTGAGE FILE" means the following documents (all of which
together constitute an original mortgage file):
(1) the original Note, endorsed, "Pay to the order of
___________, without recourse" and signed, by facsimile or
manual signature, in the name of Seller by an authorized
officer. If the 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
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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 Note for
endorsements, the endorsement may be contained on an
allonge, if the law by which such Note is governed so
permits. Such allonge shall be firmly affixed to the Note
so as to become a part thereof;
(2) the original of any loan agreement and guarantee(s)
executed in connection with the Note;
(3) 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 Seller covering all such Mortgage 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 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) the original Mortgage Assignment assigned in blank for
each Mortgage 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) 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 Seller covering all such Mortgage 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 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
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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
Seller covering all such Mortgage 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) as to each Mortgage Loan that is a HEL having an
original principal balance in excess of $25,000 that became
subject to a Transaction after June 1, 1996, (i) the
original mortgagee title insurance policy or (ii) if such
policy has not been issued, (a) a written commitment or
binder for such policy issued by a title insurer and an
officer's certificate of the title insurer certifying that
all of the requirements specified in such commitment have
been satisfied or (b) a preliminary title report issued by a
title insurer in anticipation of issuing a title insurance
policy which evidences existing liens and gives a
preliminary opinion as to the absence of any encumbrance on
title to the Mortgaged Property except liens to be removed
on or before purchase by the Mortgagor or which constitute
customary exceptions acceptable to lenders generally.
SECTION 3. 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 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 2, 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
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principal amount of the Note and the original principal
amount on the Loan Schedule; (b) the Note term is the same
as set forth on the Loan Schedule; and (c) the Note coupon
is the same as set forth on the Loan Schedule;
(3) the 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) or in the case of copies permitted
under Section 2, 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 Seller and from
Seller in blank;
(5) the power of attorney (if any), as specified in
Sections 2 (b) (1) and 2 (b) (3), (A) bears an original
signature purporting to be the signature of the maker of the
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 2 (b) (1) and (2) (b) (3) ,
that such copies bear a reproduction of such signatures and
such evidence of recordation;
(6) if a Note or a Mortgage was executed by an
attorney-in-fact, the power of attorney specified in
Sections 2(b) (1) and 2(b) (3) is included and conforms to
the requirements of such section; and
(7) there exists one of the documents required-by
clause (7) of the definition of Mortgage File for each
Mortgage Loan that is a HEL having an original principal
balance in excess of $25,000 that became subject to a
Transaction after June 1, 1996.
(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) (6)
hereof, the Custodian shall (i) sign a copy of the related Letter
of Transmittal and return the Letter of Transmittal to Seller,
and (ii) remit to Buyer 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
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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 Mortgage 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 Mortgage 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,
Seller 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 Buyer hereunder, the
Custodian shall revise its own internal books and records from time to time
to reflect its receipt or release of Mortgage Loans under the terms of this
Agreement so that the applicable Loan Schedule for any such Trust Receipt
shall always accurately reflect the Mortgage Loans held by the Custodian
under this Agreement.
SECTION 4. POSSESSION OF MORTGAGE FILES.
(a) POSSESSION OF MORTGAGE FILES ON BEHALF OF BUYER. The Custodian
shall segregate and retain possession and custody of the Mortgage Files for
the exclusive use and benefit of Buyer and as agent and bailee of and
custodian for Buyer for all purposes until otherwise notified by Buyer
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 Buyer unless otherwise notified by Buyer -pursuant to
subsection (b) hereof. The Custodian shall not release any portion of the
Mortgage Files to Seller or to any other party without the prior written
authorization of the owner of the Trust Receipt.
(b) POSSESSION OF MORTGAGE FILES ON BEHALF OF THIRD PERSONS. The
Custodian acknowledges that Buyer may transfer its interest in the Mortgage
Loans to one or more Third Persons.
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Upon receipt of written notice from Buyer, substantially in the form of
Exhibit B hereto, that Buyer has transferred its interest in the Mortgage
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 Buyer, each of which
will reflect the transfer of Buyer's interest in certain Mortgage Loans to
such Third Person. The notice sent by Buyer to she 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 Buyer and (iii) have attached the Notice Loan Schedule.
Upon receipt of any such notice from Buyer, the Custodian shall (a)
segregate and retain possession and custody of the Mortgage Files with
respect to the Mortgage 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 continuous custody of all Mortgage
Files for the benefit of the Person to whom it has issued a Trust Receipt.
Buyer's agreements with each holder of a Trust Receipt other than an
affiliate of Buyer (each such holder, a "Transferee") will specify that the
Transferee cannot issue instructions regarding the Mortgage Loans or Mortgage
Files unless Buyer has defaulted on Buyer's obligations to such Transferee.
Accordingly, the Custodian may not act on requests from a Transferee to
withdraw or otherwise dispose of Mortgage Loans unless the Transferee
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 Buyer's
agreement with its Transferee.
(c) Upon surrender of the Trust Receipt by Buyer to the Custodian,
Buyer may issue instructions regarding the Mortgage Loans designated in the
applicable Trust Receipt, including instructions to withdraw Mortgage Loans.
(d) In the event a Trust Receipt is lost, destroyed or otherwise
unavailable for surrender to the Custodian, Buyer 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, Buyer will have
the right to issue instructions regarding the Mortgage Loans covered by a
Trust Receipt without surrender of the related Trust Receipt.
(e) The Custodian understands that Buyer may need to examine Mortgage
Loans subject to a Trust Receipt on a periodic basis. Such examination shall
take place on the premises of the
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Custodian. Buyer will give the Custodian two (2) Business Days' notice
before Buyer makes an examination. Buyer's agreements with each Transferee
will grant Buyer the right to make such examinations.
(f) 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 Mortgage Loans as
confirmed by Trust Receipts as herein provided. The Custodial Register shall
be deemed to contain proprietary information and only Custodian and Buyer
shall have access to such information.
(g) With respect to the repurchase of any Mortgage Loan by Seller from
Buyer under the Repurchase Agreement, the interest of any Third Person in any
such Mortgage Loan shall automatically terminate simultaneously with the
payment to Buyer of the Repurchase Price for such Mortgage Loan under the
Repurchase Agreement and any such interest shall be deemed to have been
transferred to Buyer as of such time, except with respect to any Mortgage
Loans delivered to a Third Person 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 receives the appropriate payment
for such Mortgage Loan.
SECTION 5. RELEASE OF CUSTODIAN'S MORTGAGE FILES FOR SERVICING. From
time to time and as appropriate for the servicing of any of the Mortgage
Loans by Seller, the Custodian is hereby authorized, upon written request and
receipt of Seller and consent and acknowledgement of Buyer (to the extent
required by Exhibit H) in the form of Exhibit H, to release to Seller or its
designee the related Mortgage File, or any documents contained therein, set
forth in such receipt to Seller. All documents so released to Seller or its
designee shall be held by it in trust for the benefit of Buyer and Third
Persons from time to time. Seller or its designee shall return to the
Custodian the Mortgage File or such documents when Seller'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 Mortgage Loan by the mortgagor, and upon
receipt by the Custodian of Seller's request for release and acknowledgement
by Buyer in the form of Exhibit H, the Custodian shall promptly release the
related Mortgage File to Seller.
Seller agrees that, at the time any request for release of Mortgage
Files is made to the Custodian under this Agreement, Buyer shall be so
notified and a copy of any written request for
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release shall be furnished to Buyer. Upon its receipt of any released
Mortgage Files, Seller shall so notify Buyer.
SECTION 6. REVIEW AND DEPOSIT OF ADDITIONAL MORTGAGE LOANS.
(a) If, pursuant to the Repurchase Agreement, Seller is required to
deliver additional Mortgage Loans to the Custodian to cure a Margin Deficit
or if Seller and Buyer agree to cause additional Mortgage Loans to become
subject to the Repurchase Agreement ("Additional Mortgage Loans"), the
Custodian shall retain possession and custody of the Mortgage Files relating
thereto pursuant to Section 4 hereof and, upon receipt and review thereof,
shall transmit to Buyer a Trust Receipt that shall supersede any Trust
Receipt bearing an earlier date and have attached thereto a complete Loan
Schedule revised so as to give effect to the transaction contemplated by such
Trust Receipt.
(b) Two (2) days prior to the delivery of any Additional Mortgage Loans,
Seller will advise the Custodian whether the Custodian will be required to
review any Additional Mortgage Loans. Seller undertakes to use its best
efforts to make available for review any such Additional Mortgage Loans as
soon as is reasonably possible. Upon receipt thereof, the Custodian shall
perform its review of the Mortgage Files relating to any Additional Mortgage
Loans in the manner contemplated by Section 3 hereof.
(c) Seller covenants and agrees to provide to the Custodian at the time
Seller delivers any Additional Mortgage Loans under this Agreement, and at
the time any Mortgage Loans are transferred to Seller pursuant to Section
4(c) hereof, a revised Loan Schedule reflecting current information with
respect to all Mortgage Loans subject to the applicable Trust Receipt, after
giving effect to the related delivery or transfer.
SECTION 7. 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 se$-off, if any, that the Custodian might otherwise have
against all or any part of a Mortgage File or the proceeds thereof. The
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 Mortgage Loan.
SECTION 8. RIGHT OF INSPECTION BY BUYER AND THIRD PERSONS. 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
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possession and custody of the Custodian at such place or places
where such Mortgage Files are deposited.
SECTION 9. CUSTODIAN'S FEES AND EXPENSES. The Custodian
hereby acknowledges that Seller 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 Seller. In addition to the fees referred to in the two
foregoing sentences, Seller 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 Buyer 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 Seller's performance of its obligations to the
Custodian in respect of such fees and expenses.
SECTION 10. 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 such Mortgage Loan is
repurchased by Seller from Buyer, the receipt by Buyer of the
Repurchase Price for such Mortgage Loan under the Repurchase
Agreement. If this Agreement terminates with respect to any
Mortgage 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 any Mortgage Loan is repurchased by Seller from Buyer
pursuant to clause (iii) above, then Buyer shall execute and
deliver to the Custodian a document in substantially the form of
Exhibit I which confirms the receipt of the Repurchase Price for
such Mortgage Loan and the termination and release of all of
Buyer's right, title and interest in such Mortgage Loan, and the
Custodian upon receipt of such document shall deliver the related
Mortgage File for such Mortgage Loan to Seller or such other
Person as Seller 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 Notes without recourse, representation and warranties and
12
execute mortgage assignments pursuant to any instruction by the
Person on whose behalf the Custodian is acting as agent and
bailee pursuant to this Agreement.
SECTION 11. 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 Seller, Buyer 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 Buyer or any Third
Person, as applicable.
(b) REMOVAL. Buyer and, to the extent of its interest, any
Third Persons 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
Buyer and a majority in interest of (calculated with reference to
the face value of the Mortgage Loans) any Third Person or Persons
with any interest in the Mortgage Loans, as evidenced by the
holding of a Trust Receipt, with a copy to Seller. 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 Custodian as provided in (c)
below, if any, or to any designee specified by Buyer or any Third
Person, as applicable.
(c) APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF
MORTGAGE LOANS. Upon resignation or removal of the Custodian,
Buyer and, to the extent of its interest and if permitted by
Section 4 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 Buyer and any Third Person with respect to the
Mortgage 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 Custodian is appointed, the
Custodian shall deliver the Mortgage Files in accordance with the
written instructions of Buyer and a majority in interest of
(calculated with reference to the face value of the Mortgage
Loans) Third Persons having interests in the Mortgage Loans to
the extent such Third Persons are permitted to take action with
respect thereto under Section 4 hereof setting forth the name and
address of the successor Custodian. If Buyer 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
13
and custody to Buyer 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 Mortgage Loan in
recordable form and shall endorse the Note without recourse,
representation and warranties in accordance with Buyer'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 Buyer and Seller may
agree, in which the Mortgage Files are to be retained.
SECTION 12. 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 Seller 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 Buyer, any Third Person
(if applicable), or Seller, 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. Seller 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
14
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 transactions. The Custodian shall, upon
written request, provide to Seller, or to any other Person as
Seller 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 Buyer by registered mail of 30
days' prior written notice thereof.
SECTION 13. 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:
If to Seller:
FirstPlus Financial, Inc.
1250 Mockingbird Lane
Dallas, Texas 75247-4902
Attention: Eric Green
Chief Financial Officer
Telephone: (214) 583-4503
Telecopy: (214) 583-4901
with a copy at the same address to:
Attention: General Counsel
Telephone: (214) 583-3700
Telecopy: (214) 583-3737
If to Buyer:
Bear Stearns Home Equity Trust 1996-1
c/o Bear Stearns Mortgage Capital Corporation
245 Park Avenue
New York, New York 10167
Attn: John Garzone
Telephone: (212) 272-3853
Telecopy: (212) 272-7803
15
If to the Custodian:
Bank One, Texas, N.A.
1717 Main Street, 4th Floor
Dallas, Texas 75201
Attn: Mark L. Freeman
Mortgage Finance Group
Telephone: (214) 290-2780
Telecopy: (214) 290-2054
SECTION 14. 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 15. 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 16. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES.
This Agreement is for the exclusive benefit of the parties
hereto, and their respective successors and permitted 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 Persons pursuant to this
Agreement.
SECTION 17. 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 Buyer, Seller and the Custodian.
SECTION 18. EXHIBITS. All Exhibits referred to herein or
attached hereto are hereby incorporated by reference into, and
made a part of, this Agreement.
16
SECTION 19. 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 20. 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 21. 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 22. REPRESENTATIONS AND WARRANTIES OF THE
CUSTODIAN. The Custodian represents, warrants to, and covenants
with Buyer 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 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
17
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 Buyer 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 Buyer or any Third
Person (consistent with Custodian's
undertakings hereunder) to protect or maintain
any interest in any real property securing the
Mortgage Loan owned by such owner and any
insurance applicable thereto.
SECTION 23. LIMITED ROLE OF TRUSTEE; SUCCESSOR TRUSTEE.
(a) The execution and delivery of this Agreement by
the undersigned Trustee is solely and strictly in its capacity as
Trustee under that certain Trust Agreement dated as of March 29,
1996 (the "Trust Agreement") by and between State Street Bank and
Trust Company of California, N.A., as Trustee (the "Trustee") and
Bear Stearns Mortgage Capital Corporation, as Depositor (the
"Depositor") , and not individually, and has been undertaken at
18
the direction of the Depositor. It is hereby expressly
acknowledged that any obligations, liabilities, covenants,
duties, representations and warranties hereunder are those of
Buyer only and not of the Trustee. There shall be no individual
or corporate liability against or on the part of the Trustee (or
any of its officers, directors or employees) under this
Agreement, and there shall be no recourse against the Trustee in
its individual or corporate capacity (or any of its directors,
officers or employees) , or against any of its properties or
assets, for recovery of or as a result of any claim, debt,
liability or obligation (whether of payment or performance) of or
against Buyer under or pursuant to this Agreement (whether
arising out of or relating to any covenant, agreement,
representation or warranty, or otherwise) . Recourse against
Buyer for any claims, liabilities, debts or obligations under
this Agreement is limited to the assets and properties of the
trust established by the Trust Agreement.
(b) It is hereby acknowledged that the rights and
remedies of Buyer under or pursuant to this Agreement shall
automatically be transferred to and vest in any successor trustee
under the Trust Agreement, in the event of the resignation or
removal of the Trustee as trustee thereunder.
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.
19
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date set forth above.
FIRSTPLUS FINANCIAL, INC.
By: /s/ Eric Green
------------------------------
Name: Eric Green
Title: CFO
BANK ONE, TEXAS, N.A.,
as Custodian
By:
------------------------------
Name:
Title:
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee solely and not
individually
By:
------------------------------
Name:
Title:
20
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date set forth above.
FIRSTPLUS FINANCIAL, INC.
By:
------------------------------
Name:
Title:
BANK ONE, TEXAS, N.A.,
as Custodian
By: /s/ Mark Freeman
------------------------------
Name: Mark Freeman
Title: VP
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee solely and not
individually
By:
------------------------------
Name:
Title:
20
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date set forth above.
FIRSTPLUS FINANCIAL, INC.
By:
------------------------------
Name:
Title:
BANK ONE, TEXAS, N.A.,
as Custodian
By:
------------------------------
Name:
Title:
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee solely and not
individually
By: /s/ Barbara Bateman
------------------------------
Name: Barbara Bateman
Title: Vice President
20
EXHIBIT A
LETTER OF TRANSMITTAL
To: Bank One, Texas, N.A. From: FirstPlus Financial, Inc.
1717 Main Street, 4th Floor 1250 Mockingbird Lane
Dallas, Texas 75201 Dallas, Texas 75247
Attention: Mark L. Freeman Attention: Eric Green
Mortgage Finance Group Chief Financial
Officer
Pursuant to the Custody Agreement dated as of May 10, 1996 (the
"Custody Agreement") among Bank One, Texas, N.A. (the "Custodian"),
FirstPlus Financial, Inc. ("Seller"), and Bear Stearns Home Equity Trust
1996-1, Seller hereby delivers to you (i) the documents described below
in connection with the Mortgage Loans identified on the attached
schedule and (ii) an updated Loan Schedule identifying each Mortgage
Loan in your custody (including the Mortgage Loans referred to in clause
(i) above).
We understand that the list set forth below indicates in summary
fashion the materials for transmittal; it is not intended to describe
fully all the required characteristics of each item. We further
understand that each item sent to the Custodian must comply with the
applicable requirements of the Custody Agreement, and that all required
documents must be delivered together before the Custodian will accept
the Mortgage Loans.
With respect to each of the Mortgage Loans referred to in clause (i)
above, Seller has delivered, to the extent required by the Custody
Agreement, the following documents:
SECTION 2
(1) Letter of Transmittal (original and one copy)
(2) Original Note (endorsed in blank), including all intervening endorsements
Power of Attorney (if applicable)
(3) Original of any loan agreement and guarantee executed in connection with
the Notes, if applicable
(4) Mortgage
original, or
conformed Copy, together with the appropriate certificate
(5) Assignment of Mortgage in blank
original, or
Conformed Copy, together with the appropriate certificate
(6) Intervening Mortgage Assignment, if any
original, or
Conformed Copy, together with the appropriate certificate
(7) originals of all assumption, modification, consolidation or extension
agreements
(8) Lender's Title Insurance Policy
original, or
Written commitment issued by the title insurance
company, together with the appropriate certificate, or
Preliminary Title Report
(9) other.
A-1
Submitted The Custodian acknowledges receipt of the
By: _________________________ documents referred to and agrees to hold and
retain possession thereof pursuant to the
Date: _______________________ terms of the Custody Agreement.
Telephone Number: ___________ BANK ONE, TEXAS, N.A., as Custodian
By: _______________________________
Name:
Title:
A-2
EXHIBIT B
NOTICE TO THE CUSTODIAN
TO: Bank One, Texas, N.A., as Custodian
FROM: Bear Stearns Home Equity Trust 1996-1
DATE: _____________________
Pursuant to the Custody Agreement dated as of May 10, 1996,
among FirstPlus Financial, Inc., Bear Stearns Home Equity Trust
1996-1 and Bank One, Texas, N.A., as Custodian ("Custody
Agreement"), the undersigned hereby notifies you that it has
transferred its interest in the Mortgage Files with respect to
the Mortgage Loans identified in the mortgage loan schedule
attached hereto (the "Notice Loan Schedule") to [TRANSFEREE NAME
AND ADDRESS].
Included with this notice is the original Trust Receipt for
amendment of the Loan Schedule attached thereto. Capitalized
terms used herein without definition are as defined in the
Custody Agreement.
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee
By:
------------------------------
Name:
Title:
[Name of transferee] hereby acknowledges that (i) the Mortgage
Loans listed on the Notice Loan Schedule are being held for it by
the Custodian pursuant to the terms of the Custody Agreement,
(ii) it agrees to be bound by the Custody Agreement, (iii) the
Custodian shall not comply with the request of a Third Person to
deliver Mortgage Files unless such Third Person has delivered to
the Custodian an executed Notice of
Default Certificate and (iv) it is responsible for payment of any fees
and expenses of the Custodian incurred in connection with the issuance
of periodic reports to it or in complying with its requests.
[NAME OF TRANSFEREE]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
cc: FirstPlus Financial, Inc.
B-2
EXHIBIT C
TRUST RECEIPT
[Date]
Bear Stearns Home Equity Trust 1996-1
Re: Custody Agreement dated as of May 10, 1996, among
FirstPlus Financial, Inc., Bear Stearns Home Equity
Trust 1996-1 and Bank One, Texas, N.A., as Custodian
----------------------------------------------------
Gentlemen:
In accordance with the provisions of Paragraph 3 of the above-referenced
Custody Agreement (the "Custody Agreement"), the undersigned, as Custodian,
hereby certifies that as to each Mortgage Loan described in the Loan
Schedule, a copy of which is attached hereto, it has reviewed the Mortgage
File and has determined that, except as set forth on the Exception Report
attached hereto, (i) all documents required to be delivered to it pursuant to
the Custody Agreement are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan, and (iii) based on its examination of the foregoing documents, such
documents on their face satisfy the requirements set forth in Sections 3 (a)
(1) through 3(a) (6) of the Custody Agreement.
The Custodian hereby confirms that it is holding each such Mortgage File
as agent and bailee of and custodian for and for the exclusive use and
benefit of Bear Stearns Home Equity Trust 1996-1 ("BS Trust") or its
transferee pursuant to the terms of the Custody Agreement.
This Trust Receipt is not a negotiable instrument. BS Trust may,
however, transfer this receipt by a special endorsement to one other party.
The party that takes this receipt from BS Trust or its affiliate by special
endorsement may only transfer this receipt by a second endorsement in BS
Trust's or its affiliate's favor.
The Custodian will accept and act on instructions with respect to the
Mortgage Loans only upon surrender of this receipt at its Corporate Trust
Office, [ADDRESS], Attention: _________________. If the receipt has been
endorsed and is held by a Person other than BS Trust or one of its
affiliates, we will accept and act on instructions from the endorsee only if
the attached Notice of Default Certificate is executed and delivered
C-1
to us stating that an Event of Default has occurred under a repurchase
agreement relating to this Trust Receipt between BS Trust and the endorsee.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Custody Agreement.
BANK ONE, TEXAS, N.A.,
as Custodian
By:
-------------------------------
Name:
Title:
C-2
EXHIBIT E
NOTICE OF DEFAULT CERTIFICATE
_______________, 199__
Bank One, Texas, N.A.,
as Custodian
[ADDRESS]
Gentlemen:
As the transferee of a Trust Receipt for certain Mortgage Loans, which
Trust Receipt is attached hereto, we hereby notify you that an event of
default has occurred under our agreement with ________________________ and we
are entitled to receive the Mortgage Loans subject to the aforementioned
Trust Receipt.
[ ]
-----------------------------------------
By:
--------------------------------------
Name:
Title:
Notice Received by Custodian
on [Date]
By:
--------------------------------------
Title:
Date:
E-1
EXHIBIT F
Bank One, Texas, N.A.,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of May 10, 1996, among
FirstPlus Financial, Inc., Bear Stearns Home
Equity Trust 1996-1 and Bank One, Texas, N.A., as
Custodian
--------------------------------------------------
Gentlemen:
On [date] you issued a trust receipt in the name of BS Trust evidencing
entitlement to the Mortgage Loans described on Schedule A hereto and held by
you as Custodian. You issued that receipt pursuant to our agreement with
FirstPlus Financial, Inc. dated as of May 10, 1996. The trust receipt has
been [lost, destroyed, etc.]. Every effort was made to recover the receipt;
those efforts were unsuccessful. It is, therefore, now unavailable for
surrender to you.
At the time of its [loss, destruction, etc.], the receipt was held by us
under [the terms of original issue, special endorsement]. Since its
[issuance, endorsement] to us, we have not sold, assigned, transferred,
pledged or otherwise granted an interest in the trust receipt that has not
been released prior to the date hereof. Accordingly, this letter authorizes
you to act on our instructions regarding such Mortgage Loans without
surrender of the receipt to you.
We hereby agree to indemnify and hold you harmless against any loss,
liability or expense that you may incur as a result of acting on our
instructions regarding such Mortgage Loans without our surrender of the
receipt to you, excluding, however, any such loss, liability or expense
caused by your gross negligence or willful misconduct.
F-1
If the trust receipt is ever recovered by us, we will immediately notify
you, cancel the receipt and surrender the receipt to you.
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee
By:
----------------------------------
Name:
Title:
F-2
EXHIBIT G
Bank One, Texas, N.A.,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of May 10, 1996, among
FirstPlus Financial, Inc., Bear Stearns Home
Equity Trust 1996-1 and Bank One, Texas, N.A., as
Custodian
--------------------------------------------------
Gentlemen:
On [date] you issued a trust receipt in the name of Bear Stearns Home
Equity Trust 1996-1 ("BS Trust") evidencing entitlement to the Mortgage Loans
described on Schedule __ hereto and held by you in the name of
________________________, as Custodian. You issued that receipt pursuant to
our agreement with FirstPlus Financial, Inc. dated as of May 10, 1996. The
trust receipt has been [lost, destroyed, etc.]. Every effort was made to
recover the receipt; those efforts were unsuccessful. It is, therefore, now
unavailable for surrender to you.
At the time of its [loss, destruction, etc.], the receipt was held by
[name of transferee) under a special endorsement by us. We have attached to
this letter a special endorsement, from [name of transferee] conveying to us
its interest in the trust receipt and authorizing us to issue instructions
regarding the Mortgage Loans subject thereto without surrender of the receipt.
[name of transferee] has represented to us that it has not sold, assigned,
transferred, pledged or otherwise granted an interest in the trust receipt
to any party other than BS Trust. Accordingly, this letter authorizes you to
act on our instructions regarding such Mortgage Loans without surrender of
the receipt to you.
We hereby agree to indemnify and hold you harmless against any loss,
liability or expense that you may incur as a result of acting on our
instructions regarding such Mortgage Loans without our surrender of the
receipt to you, excluding, however, any such loss, liability or expense
caused by your gross negligence or willful misconduct.
G-1
If the trust receipt is ever recovered by us, we will immediately notify
you, cancel the receipt and surrender the receipt to you.
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
G-2
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: Bank One, Texas, N.A.,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of May 10, 1996, among
FirstPlus Financial, Inc., Bear Stearns Home Equity
Trust 1996-1 and Bank One, Texas, N.A., as Custodian
----------------------------------------------------
In connection with the administration of Mortgage Loans held by you as
Custodian for Buyer and Third Persons from time to time pursuant to the
above-referenced Custodial Agreement, we hereby request the release, and
acknowledge receipt, of the [specify documents] [related Mortgage Files] for
the Mortgage Loans described in the attached Loan Schedule, for the reason
indicated.
MORTGAGOR'S NAME ADDRESS AND ZIP CODE:
MORTGAGE LOAN NUMBER:
REASON FOR REQUESTING DOCUMENTS (check one):
___1. Mortgage Loan paid in full. (The Custodian shall
delete the Mortgage Loan from the applicable Loan
Schedule and send the amended Loan Schedule to Buyer
and any related Third Person.)
___2. Repurchase of Mortgage Loan pursuant to the Repurchase
Agreement. (The Custodian shall delete the Mortgage
Loan from the applicable Loan Schedule and send the
amended Loan Schedule to Buyer and any related Third
Person.)
___3. Delivery of substituted Mortgage Loan. (The Custodian
is hereby authorized to delete the Mortgage Loan from
the applicable Loan Schedule attached hereto and send
the amended Loan Schedule to Buyer and any related
Third Person.)
___4. Mortgage Loan liquidated by ______________. (The
Custodian is hereby authorized to delete the Mortgage
Loan from the applicable Loan Schedule attached hereto
and send the amended Loan Schedule to Buyer and any
related Third Person.)
H-1
___5. Mortgage Loan in foreclosure or otherwise released for
servicing.
If box 1, 2, 3 or 4 above is checked, and if all or part of the
Mortgage Files were previously released to FirstPlus Financial, Inc., please
release to FirstPlus Financial, Inc. its previous request and receipt on file
with you, as well as any additional documents in your possession relating to
the specified Mortgage Loan.
If box 5 above is checked, upon the return of all of the above documents
to you as the Custodian, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
FirstPlus Financial, Inc. understands and agrees that all documents
delivered to FirstPlus Financial, Inc. or its subservicer pursuant to this
request for release (other than with respect to Items 1-4) shall be returned
to the Custodian no later than twenty-one (21) days from the date hereof.
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Custody Agreement.
FIRSTPLUS FINANCIAL, INC.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
Acknowledged and Agreed:
BEAR STEARNS HOME EQUITY TRUST
1996-1
By: State Street Bank and Trust
Company of California, N.A.,
as Trustee
(Required if documentation relating to more than three (3)
Mortgage Files are outstanding or the release of a Note or
Mortgage Assignment is requested.)
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
H-2
Acknowledgement of documents returned to the Custodian, for the reasons
listed in item 5:
BANK ONE, TEXAS, N.A.
Custodian
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
H-3
EXHIBIT I
CONFIRMATION OF RESALE AND RECEIPT
To: Bank One, Texas, N.A., as Custodian
FirstPlus Financial, Inc.
Date: ___ _, 199
Re: Custody Agreement, dated as of May 10, 1996, among Bear
Stearns Home Equity Trust 1996-1 (the "Buyer"),
FirstPlus Financial, Inc. (the "Seller") and Bank One,
Texas, N.A., as custodian thereunder
Buyer hereby:
(a) Acknowledges receipt of $_______________ in immediately available
funds on behalf of Seller;
(b) Acknowledges that the funds referred to in clause (a) above
constitute sufficient consideration under the terms of the Master Repurchase
Agreement, dated as of May 10, 1996 among Buyer and Seller, for the release
by Buyer of its interest in the Mortgage Loans listed on Schedule A hereto;
(c) Confirms that it has released to Seller all of its right, title and
interest in and to the Mortgage Loans listed on Schedule A hereto; and
(d) Confirms that it has not granted or created any interest in the
Mortgage Loans listed on Schedule A hereto other than interests that have
been fully discharged or satisfied on or prior to the date hereof.
Dated: ________ ___, 199__ BEAR STEARNS HOME EQUITY TRUST
1996-1
By: Bear Stearns Mortgage Capital
Corporation, as agent
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
I-1