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ADMINISTRATION AGREEMENT
dated as of May 1, 1998
among
MASTER FINANCIAL ASSET SECURITIZATION TRUST 1998-2
(the "Issuer")
and
THE BANK OF NEW YORK, as Administrator
(the "Administrator")
and
MASTER FINANCIAL, INC.
(the "Company" and "Servicer")
Home Loan Asset Backed Notes, Series 1998-2
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TABLE OF CONTENTS
Section 1. Duties of the Administrator.........................................2
Section 2. Duties of the Company with Respect to the Indenture.................4
Section 3. Records.............................................................6
Section 4. Compensation........................................................6
Section 5. Additional Information to Be Furnished to the Issuer................6
Section 6. Independence of the Administrator...................................7
Section 7. No Joint Venture....................................................7
Section 8. Other Activities of Administrator and Servicer......................7
Section 9. Term of Agreement; Resignation and Removal of
Administrator or Servicer...........................................7
Section 10. Action upon Termination, Resignation or Removal of the
Administrator......................................................8
Section 11. Notices............................................................9
Section 12. Amendments........................................................10
Section 13. Successor and Assigns.............................................10
Section 14. Governing Law.....................................................11
Section 15. Headings..........................................................11
Section 16. Counterparts......................................................11
Section 17. Severability......................................................11
Section 18. Not Applicable to The Bank of New York in Other Capacities........11
Section 19. Limitation of Liability of Owner Trustee..........................11
Section 20. Benefit of Agreement..............................................11
Section 21. Bankruptcy Matters................................................12
Section 22. Indemnification of the Administrator by the Servicer..............12
Section 23. Certain Duties....................................................12
Section 24. Capitalized Terms.................................................12
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT dated as of May 1, 1998, among MASTER FINANCIAL
ASSET SECURITIZATION TRUST 1998-2, a Delaware business trust, as Issuer (the
"Issuer"), THE BANK OF NEW YORK, a New York banking corporation, not in its
individual capacity but solely as Administrator ("BNY" and in such capacity, the
"Administrator"), and MASTER FINANCIAL, INC., a California corporation, as the
Company and Servicer (respectively, the "Company" and "Servicer").
W I T N E S S E T H:
WHEREAS, the Issuer is a business trust (the "Owner Trust") under the
Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) created by a
Trust Agreement relating to the Owner Trust dated as of May 1, 1998 (the "Owner
Trust Agreement"), among PaineWebber Mortgage Acceptance Corporation IV, as
depositor (the "Depositor"), Wilmington Trust Company, as Owner Trustee, The
Bank of New York, as Paying Agent (in such capacity, the "Paying Agent") and
Master Financial, Inc.;
WHEREAS, the Issuer will issue Home Loan Asset Backed Notes (the "Notes"),
Series 1998-2;
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of May 1, 1998 (the
"Indenture"), between the Issuer and BNY, as Indenture Trustee (in such
capacity, the "Indenture Trustee");
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes, including (i) a Sale and Servicing Agreement dated as
of May 1, 1998 (the "Sale and Servicing Agreement"), among the Issuer, Master
Financial, Inc., as servicer and transferor (in such capacities, the "Servicer"
and the "Transferor," respectively), the Depositor and BNY, as Indenture Trustee
and the grantor trustee (in such capacity the "Grantor Trustee"), (ii) a Grantor
Trust Agreement dated as of May 1, 1998 (the "Grantor Trust Agreement"), among
the Depositor, the Grantor Trustee and the Transferor, (iii) the Letter of
Representations, among the Issuer, the Indenture Trustee and The Depository
Trust Company relating to the Notes (the "Note Depository Agreement"), (iv) the
Indenture and (v) one or more Subsequent Transfer Agreements (vi) the Owner
Trust Agreement (the Sale and Servicing Agreement, the Note Depository
Agreement, the Indenture, each subsequent Transfer Agreement, the Grantor Trust
Agreement and the Owner Trust Agreement being hereinafter referred to
collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with the Notes and the collateral therefor
pledged pursuant to the Indenture (the "Collateral");
WHEREAS, the Issuer desires to have the Administrator and the Servicer,
respectively, perform certain of the duties of the Issuer referred to in the
preceding clause, and to provide such additional services consistent with the
terms of this Agreement and the Related Agreements as the Issuer may from time
to time request; and
WHEREAS, the Administrator and the Servicer have the capacity to provide
the respective services required hereby and are willing to perform such services
for the Issuer on the terms set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with Respect to the Note Depository Agreement, the
Sale and Servicing Agreement and the Indenture.
(i) The Administrator agrees to perform all of the duties of the
Issuer under the Note Depository Agreement and those duties set forth
herein. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer under the Sale and Servicing
Agreement, the Indenture and the Subsequent Transfer Agreement. The
Administrator shall monitor the performance of the Issuer and shall
notify the Owner Trustee when the Adminsitrator has actual knowledge
that action is necessary to comply with the Issuer's duties under the
Subsequent Transfer Agreement, Sale and Servicing Agreement, the
Indenture and the Note Depository Agreement. In addition to the
foregoing, the Administrator shall take all appropriate action that is
the duty of the Issuer to take with respect to the following matters
under the Sale and Servicing Agreement and the Indenture (parenthetical
section references are to sections of the Indenture):
(A) the execution of the Notes upon their issuance
and upon the registration of any transfer or exchange
of the Notes;
(B) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new
Note Registrar and the location, or change in location, of the
Note Register (Section 2.03);
(C) the notification of Noteholders of the final principal
payment on the Notes or of the redemption of the Notes or the
duty to cause the Indenture Trustee to provide such
notification (Sections 2.06(b) and 10.02);
(D) performing the function of the Issuer with respect
to the cancellation of the Notes (Section 2.07);
(E) the maintenance of an office in the Borough of
Manhattan in the City of New York for registration of transfer
or exchange of Notes (Section 3.02);
(F) the delivery to the Indenture Trustee and the Rating
Agencies of prompt written notice of each Event of Default of
which the Adminstrator has actual knowledge under the
Indenture (Section 3.14);
(G) the duty to act as Paying Agent for the Issuer and the
duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.03);
(H) directing the Indenture Trustee to deposit moneys with
Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(I) notifying the Indenture Trustee and the Rating
Agencies of the occurrence of an Event of Default under the
Sale and Servicing Agreement by the Servicer or the Transferor
which the Administrator has actual knowledge of;
(J) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture (Section 4.01);
(K) the preparation and filing of all documents and
reports by the Issuer as required under the Exchange Act, the
rules and regulations of the Commission and the TIA at the
expense of the Company(Section 7.03);
(L) notifying the Rating Agencies of a redemption of the
Notes and the duty to cause the Servicer to deposit the
Termination Price into the Note Payment Account and the
Certificate Distribution Account (Section 10.01);
(M) providing the Indenture Trustee with calculations
pertaining to original issue discount, if any, on the Notes
and, if applicable, the accrual of market discount or the
amortization of premium on the Notes to the extent the
Administrator has received from the Depositor sufficient
information to calculate such amounts (Section 3.03); and
(N) filing Internal Revenue Service Form 8811 within 30
days of the Closing Date, designating the officer of the
Indenture Trustee that Noteholders may contact for original
issue discount information with respect to the Notes, and
updating such Form at the time or times required by the Code.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Servicer shall be responsible for
performance of the duties of the Owner Trustee set forth in the Owner
Trust Agreement with respect to, among other things, accounting and
reports to Owners, and the Servicer shall be responsible for the
performance of the tax duties set forth in Section 5.5 of the Owner
Trust Agreement upon receipt of the Opinion of Counsel specified in
Section 5.5 of the Owner Trust Agreement stating that it is necessary
to perform such tax duties; provided, however, that the Owner Trustee
shall retain responsibility for the distribution of the Schedule K-1's
necessary to enable each Owner to prepare its federal and state income
tax returns; provided further, that the Indenture Trustee shall receive
written notification if there shall be two or more beneficial owners of
the Owner Trust.
(iii) The Servicer shall satisfy its obligations with respect to
clauses (a)(ii) above and (b)(ii) below by retaining, at the expense of
the Servicer payable by the Servicer, a firm of independent public
accountants (the "Accountants") acceptable to the Owner Trustee which
shall perform the obligations of the Servicer thereunder. In connection
with paragraph (a)(ii) above, the Accountants will provide a letter in
form and substance satisfactory to the Owner Trustee and the
Administrator as to whether any tax withholding is then required and,
if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be
required to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(b) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
Section 2. Duties of the Company with Respect to the Indenture.
(a) The Company shall take all appropriate action that is the duty of the
Issuer to take with respect to the following matters under the Indenture
(parenthetical section references are to sections of the Indenture):
(i) preparing, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of
Collateral (Section 2.09);
(ii) providing the Indenture Trustee with calculations pertaining
to original issue discount, if any, on the Notes and, if applicable,
the accrual of market discount or the amortization of premium on the
Notes to the extent the Administrator has received from the Depositor
sufficient information to calculate such amounts (Section 3.03); and
(iii) preparation and execution of all supplements, amendments,
financing statements, continuation statements, instruments of further
assurance and other instruments, in accordance with Section 3.05 of the
Indenture, necessary to protect the Owner Trust Estate (Section 3.05);
(iv) the annual delivery of Opinions of Counsel, in accordance
with Section 3.06 of the Indenture, as to the Owner Trust Estate, and
the annual delivery of the Officers' Certificate and certain other
statements, in accordance with Section 3.09 of the Indenture, as to
compliance with the Indenture (Sections 3.06 and 3.09);
(v) monitoring the Issuer's compliance with its negative covenants
(Section 3.08) and the compliance of the Servicer with certain of its
obligations under the Sale and Servicing Agreement (Section 3.03);
(vi) compliance with any directive of the Indenture Trustee with
respect to the sale of the Owner Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing under the Indenture (Section 5.04);
(vii) the preparation of an Officer's Certificates and the
obtaining of the Opinion of Counsel and the Independent Certificates
relating thereto with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture (Sections 4.01
and 11.01);
(viii) appointing a successor Indenture Trustee pursuant to
Section 6.08 of the Indenture
(Section 6.08);
(ix) causing one or more accounts to be opened in the Owner
Trust's name and preparing Issuer Orders, Officers' Certificates and
Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections
8.02 and 8.03);
(x) preparing an Issuer Request and Officers' Certificate and
obtaining an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Owner Trust Estate as defined in the
Indenture (Sections 8.05 and 8.06);
(xi) preparing Issuer Orders and obtaining of Opinions of Counsel
with respect to any proposed amendment of the Owner Trust Agreement or
amendment to or waiver of any provision of any other document relating
to the Owner Trust Agreement pursuant to Section 9.07 of the Indenture
(Section 9.07);
(xii) notifying the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04);
and
(xiii) where applicable, the preparation and delivery on behalf
of the Issuer of Certificates of Fair Value of the Collateral.
(b) The Company will indemnify the Owner Trustee and its agents for, and
hold them harmless against, any losses, liability or expense incurred without
gross negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated by the
Owner Trust Agreement, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise or
performance of any of their powers or duties under the Owner Trust Agreement.
(i) Additional Duties. In addition to the duties of the Company
set forth above, the Company shall prepare for execution by the Issuer
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Issuer to prepare, file or deliver pursuant
to the Related Agreements, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuer to
take pursuant to the Related Agreements. Subject to Section 5 hereof
and in accordance with the directions of the Owner Trustee, the Company
shall administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Company.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Servicer shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Owner Trust's payments (or allocations of income)
to an Owner as contemplated in Section 5.2(c) of the Owner Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
Section 3. Records.
The Administrator shall maintain appropriate books of account and records
relating to services performed hereunder, which books of account and records
shall be accessible for inspection by the Issuer and the Servicer at any time
during normal business hours.
Section 4. Compensation.
The Administrator will perform the duties and provide the services called
for under Section 1 hereof without any separate compensation therefor for so
long as the Indenture and the Sale and Servicing Agreement remain in effect, and
thereafter for such compensation as shall be agreed upon among the
Administrator, the Owner Trustee and the Servicer. The fees of the attorneys
delivering the Opinion of Counsel, the fees of Accountant's retained pursuant to
Section 1(a)(iii) above, and any other amounts of out-of-pocket expenses
reasonably incurred by the Administrator pursuant to the Indenture shall be paid
by the Servicer and the Servicer, by its execution hereof, agrees to pay such
reasonable fees and expenses to the Administrator. The Administrator shall
perform any other services as may be agreed between the Administrator and the
Owner Trustee for such compensation as may be agreed between the Administrator,
the Owner Trustee and the Servicer. The Administrator agrees to perform all its
duties under this Agreement regardless of any non-payment of fees or expenses by
the Company or the Owner Trustee, as applicable.
Section 5. Additional Information to Be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
Section 6. Independence of the Administrator.
For all purposes of this Agreement, the Administrator shall be an
independent contractor and shall not be subject to the supervision of the Issuer
or the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized herein or
by the Issuer, the Administrator shall have no authority to act for or represent
the Issuer or the Owner Trustee in any way and shall not otherwise be deemed an
agent of the Issuer or the Owner Trustee.
Section 7. No Joint Venture.
Nothing contained in this Agreement (i) shall constitute the Administrator
or the Servicer, respectively, and either the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 8. Other Activities of Administrator and Servicer.
Nothing herein shall prevent the Administrator, the Servicer or their
respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an administrator for any other
person or entity even though such person or entity may engage in business
activities similar to those of the Issuer or the Owner Trustee.
Section 9. Term of Agreement; Resignation and Removal of Administrator or
Servicer.
(a) This Agreement shall continue in force until the termination of the
Owner Trust Agreement in accordance with its terms, upon which event this
Agreement shall automatically terminate.
(b) Subject to Section 9(e) hereof, the Administrator or the Servicer may
resign their respective duties hereunder by providing the Issuer with at least
60 days' prior written notice.
(c) Subject to Section 9(e) hereof, the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(d) Subject to Section 9(e) hereof, the Issuer may remove the Administrator
immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events occurs:
(i) the Administrator defaults in the performance of any of its
duties under this Agreement and, after notice of such default, does not
cure such default within ten days (or, if such default cannot be cured
in such time, does not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii)a court having jurisdiction in the premises enters a decree or
order for relief, and such decree or order shall not have been vacated
within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appoints a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or orders the
winding-up or liquidation of its affairs; or
(iii) the Administrator commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, consents to the entry of an order for relief in an
involuntary case under any such law, consents to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, consents to the taking of possession by any such official of
any substantial part of its property, makes any general assignment for
the benefit of creditors or fails generally to pay its debts as they
become due.
The Administrator agrees that if any of the events specified in clause (ii)
or clause (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator or Servicer,
respectively, pursuant to this Section 9(d) shall be effective until (i) a
successor Administrator or Servicer, as the case may be, shall have been
appointed by the Issuer and (ii) such successor Administrator or Servicer shall
have agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator or Servicer is bound hereunder.
(f) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
(g) Subject to Section 9(e) and (f) hereof, the Administrator acknowledges
that upon the appointment of a successor Indenture Trustee pursuant to Section
6.08 of the Indenture, the Administrator shall immediately resign and such
successor Indenture Trustee shall automatically become the Administrator under
this Agreement. Any such successor Indenture Trustee shall be required to agree
to assume the duties of the Administrator under the terms and conditions of this
Agreement in its acceptance of appointment as successor Indenture Trustee.
(h) The Servicer's appointment hereunder will terminate automatically on
the Servicer's resignation or removal under the Sale and Servicing Agreement.
Section 10. Action upon Termination, Resignation or Removal of the
Administrator.
Promptly upon the effective date of termination of this Agreement pursuant
to Section 9(a) or the resignation or removal of the Administrator pursuant to
Section 9(b) or (c), respectively, the Administrator shall be entitled to be
paid all reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator and, in the
event of the resignation or removal of the Administrator pursuant to Section
9(b), (c) or (d), the Administrator shall cooperate with the Issuer and take all
reasonable steps requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
Section 11. Notices.
Any notice, report or other communication given hereunder shall be in
writing and addressed as follows:
(a) if to the Issuer, to
Master Financial Asset Securitization Trust 1998-2
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
with a copy to the Company at
Master Financial, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
(b) if to the Administrator, to
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust MBS Administration
(c) if to the Servicer, to
Master Financial, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
Section 12. Amendments.
This Agreement may be amended from time to time by a written amendment duly
executed and delivered by the Issuer, the Administrator and the Servicer, with
the prior written consent of the Owner Trustee without the consent of the
Noteholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner, the rights of the Noteholders; provided, however, that such
amendment will not materially and adversely affect the interest of any
Noteholder. An amendment described above shall be deemed not to adversely affect
in any material respects the interests of any Noteholder if either (i) an
Opinion of Counsel is obtained to such effect or (ii) the party requesting the
amendment satisfies the Rating Agency Condition with respect to such amendment.
This Agreement may also be amended by the Issuer, the Administrator and the
Servicer with the prior written consent of the Owner Trustee and the holders of
Notes evidencing at least a majority of the Outstanding Amount of the Notes for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of Noteholders; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments in respect of the Home Loans or payments that are
required to be made for the benefit of the Noteholders or (ii) reduce the
aforesaid percentage of the holders of Notes which are required to consent to
any such amendment, in the case of either clause (i) or clause (ii) hereof,
without the consent of the holders of all the Outstanding Notes. Notwithstanding
the foregoing, the Administrator may not amend this Agreement without the
permission of the Servicer, which permission shall not be withheld unreasonably.
Section 13. Successor and Assigns.
This Agreement may not be assigned by the Administrator unless such
assignment is previously consented to in writing by the Owner Trustee and the
Servicer, subject to the satisfaction of the Rating Agency Condition in respect
thereof. An assignment with such consent and satisfaction, if accepted by the
assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Owner Trustee or
the Servicer to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided,
however, that such successor organization executes and delivers to the Issuer,
the Owner Trustee and the Servicer an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
Section 14. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 15. Headings.
The section headings hereof have been inserted for convenience of reference
only and shall not be construed to affect the meaning, construction or effect of
this Agreement.
Section 16. Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall together constitute but one and the same agreement.
Section 17. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 18. Not Applicable to The Bank of New York in Other Capacities.
Nothing in this Agreement shall affect any obligation that The Bank of New
York may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by Wilmington Trust Company not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Owner Trust Agreement.
Section 20. Benefit of Agreement.
It is expressly agreed that in performing its duties under this Agreement,
the Administrator will act for the benefit of holders of the Notes as well as
for the benefit of the Owner Trust, and that such obligations on the part of the
Administrator shall be enforceable at the instance of the Indenture Trustee and
the Owner Trust.
Section 21. Bankruptcy Matters.
No party to this Agreement shall take any action to cause the Owner Trust
or the Depositor to dissolve in whole or in part or file a voluntary petition or
otherwise initiate proceedings to have the Owner Trust or the Depositor
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Owner Trust or the Depositor, or file a
petition seeking or consenting to reorganization or relief of the Owner Trust or
the Depositor as debtor under any applicable federal or state law relating to
bankruptcy, insolvency or other relief for debtors with respect to the Owner
Trust or the Depositor; or seek or consent to the appointment of any trustee,
receiver, conservator, assignee, sequestrator, custodian, liquidator (or other
similar official) of the Owner Trust or the Depositor or of all or any
substantial part of the properties and assets of the Owner Trust or the
Depositor, or cause the Owner Trust or the Depositor to make any general
assignment for the benefit of creditors of the Owner Trust or the Depositor or
take any action in furtherance of any of the above actions.
Section 22. Indemnification of the Administrator by the Servicer.
The Servicer shall indemnify the Administrator (and any predecessor
Administrator) against any and all loss, liability or expense (including
attorneys' fees and expenses) incurred by it in connection with the
administration or acceptance of this trust and the performance of its duties
hereunder. The Administrator shall notify the Servicer promptly of any claim for
which it may seek indemnity. Failure by the Administrator to so notify the
Servicer shall not relieve the Servicer of its obligations hereunder. The
Servicer shall defend any such claim, and the Administrator may have separate
counsel and the Servicer shall pay the fees and expenses of such counsel. The
Servicer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Administrator to the extent attributable the
Administrator's own willful misconduct, gross negligence or bad faith.
Section 23. Certain Duties.
Duties of the Issuer under the Basic Documents to be performed by the
Administrator and the Servicer not otherwise provided for herein shall be
performed by the Servicer.
Section 24. Capitalized Terms.
Capitalized terms used and not defined herein have the meanings assigned to
them in the Indenture. Capitalized terms used and not defined herein or in the
Indenture have the meanings assigned to them in the Sale and Servicing
Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
MASTER FINANCIAL ASSET
SECURITIZATION TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
By:___________________________
Name:
Title:
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Administrator,
By:_______________________________
Name:
Title:
MASTER FINANCIAL, INC.,
as the Company and as Servicer,
By:_______________________________
Name:
Title:
