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ADMINISTRATION AGREEMENT
dated as of November 1, 1998
among
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-3
(the "Issuer"),
U.S. BANK NATIONAL ASSOCIATION,
(the "Administrator")
and
EMPIRE FUNDING CORP.
(the "Company" and "Servicer")
Home Loan Asset Backed Notes, Series 1998-3
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TABLE OF CONTENTS
Page
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..............7
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 ...................................................9
Section 11. Notices..........................................................9
Section 12. Amendments......................................................10
Section 13. Successor and Assigns...........................................11
Section 14. Governing Law...................................................11
Section 15. Headings........................................................11
Section 16. Counterparts....................................................12
Section 17. Severability....................................................12
Section 18. Not Applicable to U.S. Bank in Other Capacities.................12
Section 19. Limitation of Liability of Owner Trustee........................12
Section 20. Benefit of Agreement............................................12
Section 21. Bankruptcy Matters..............................................12
Section 22. Capitalized Terms...............................................13
Section 23. Third Party Beneficiary.........................................13
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT dated as of November 1, 1998, among EMPIRE
FUNDING HOME LOAN OWNER TRUST 1998-3, a Delaware business trust, as Issuer (the
"Issuer"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity but solely as Administrator ("U.S. Bank" and in such
capacity, the "Administrator") and EMPIRE FUNDING CORP., an Oklahoma
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 November 1, 1998 (the "Owner
Trust Agreement"), among PaineWebber Mortgage Acceptance Corporation IV, as
depositor (the "Depositor"), Wilmington Trust Company, as Owner Trustee, U.S.
Bank, as Paying Agent (in such capacity, the "Paying Agent") and Empire Funding
Corp.;
WHEREAS, the Issuer will issue Home Loan Asset Backed Notes (the
"Notes"), Series 1998-3;
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of November 1, 1998 (the
"Indenture"), between the Issuer and U.S. Bank, 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 November 1, 1998 (the "Sale and Servicing Agreement"), among the
Issuer, Empire Funding Corp., as servicer and transferor (in such capacities,
the "Servicer" and the "Transferor," respectively), Norwest Bank Minnesota,
National Association (the "Master Servicer"), the Depositor and U.S. Bank, as
Indenture Trustee and grantor trustee (in such capacity the "Grantor Trustee"),
(ii) a Grantor Trust Agreement dated as of November 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 Insurance and Indemnification Agreement, dated as of
November 1, 1998 (the "Insurance Agreement"), among the Securities Insurer,
Empire Funding Corp., as transferor and servicer, the Depositor, the Issuer,
Empire Funding Grantor Trust 1998-3, the Indenture Trustee, the Grantor Trustee
and the Master Servicer, (v) the Indenture and (vi) the Owner Trust Agreement
(the Sale and Servicing Agreement, the Note Depository Agreement, the Grantor
Trust Agreement, the Insurance Agreement, the Indenture 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.
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, the Insurance 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 Insurance Agreement, the Indenture and the Note Depository Agreement.
The Administrator shall notify the Owner Trustee when action is necessary
to comply with the Issuer's duties under the Sale and Servicing Agreement,
the Insurance 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 preparation of the Notes and the execution of the
Notes upon their issuance and upon the registration of any transfer or
exchange of the Notes (Sections 2.02 and 2.03);
(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 and the Securities
Insurer 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 preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.08);
(F) the maintenance of an office in the City of St. Xxxx,
Minnesota, for registration of transfer or exchange of Notes (Section
3.02);
(G) the delivery to the Indenture Trustee, the Securities
Insurer and the Rating Agencies of prompt written notice of each Event
of Default under the Indenture (Section 3.13);
(H) 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);
(I) directing the Indenture Trustee to deposit moneys with
Paying Agents, if any, other than the Indenture Trustee (Section
3.03);
(J) notifying the Indenture Trustee, the Securities Insurer
and the Rating Agencies of the occurrence of an Event of Default under
the Sale and Servicing Agreement by the Servicer or the Transferor
and, if such an Event of Default arises from the failure of the
Servicer or the Transferor to perform any of their respective duties
under the Sale and Servicing Agreement, the taking of all reasonable
steps available to remedy such failure (Section 3.07(d));
(K) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture (Section 4.01);
(L) opening one or more accounts in the Owner Trust's name
(Section 8.02);
(M) notifying the Rating Agencies, the Master Servicer and
the Securities Issuer of a redemption of the Notes and the duty to
cause the Majority Residual Interestholders or the Securities Insurer,
as applicable, to deposit the Termination Price into the Note Payment
Account and the Certificate Distribution Account (Section 10.01);
(N) 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 Servicer sufficient information to calculate such amounts (Section
3.03);
(O) the preparation and filing of all documents and reports
by the Issuer on Forms 8-K and 10-K as required under the Exchange
Act, the rules and regulations of the Commission thereunder and the
TIA (Section 7.03); and
(P) 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.
(Q) executing and delivering any financing statement,
continuation statement or other instrument necessary or required
pursuant to Section 3.05 of the Indenture (Section 3.05).
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator 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 Administrator shall be responsible for the performance of
the tax duties set forth in (i) Sections 5.2(c) and (ii) 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.
(b) (i) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Owner Trust Agreement
required to be performed in connection with the resignation or removal of
the Owner Trustee, and any other duties expressly required to be performed
by the Administrator under the Owner Trust Agreement.
(ii) 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) 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);
(iii) 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);
(iv) 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 3.07);
(v) 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);
(vi) appointing a successor Indenture Trustee pursuant to Section
6.08 of the Indenture (Section 6.08);
(vii) 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);
(viii) 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);
(ix) 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);
(x) notifying the Rating Agencies, the Securities Insurer or the
Master Servicer 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
(xi) where applicable, the preparation and delivery on behalf of
the Issuer, 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 Administrator 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, the Servicer and the
Master 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.
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 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, the Securities Insurer 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
Empire Funding Home Loan Owner Trust 1998-3
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
Empire Funding Corp.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
(b) if to the Administrator, to
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance/Empire
Funding 1998-3
(c) if to the Servicer, to
Empire Funding Corp.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
(d) if to the Master Servicer, to
Norwest Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Master Servicing Manager
(Empire Funding 1998-3)
with a copy to:
Norwest Bank Minnesota, National Association
000 Xxxxxxxxx Xxxxxx, XX0000
Xxxxxxxxxxx, XX 00000-0000
Attention: Mortgage Document Custody
(e) if to the Securities Insurer, to
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management-Structured
Finance (IPM-SF)
(Empire Funding Home Loan Owner Trust 1998-3)
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 or the Securities Insurer, 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 or the
Securities Insurer; provided, however, that such amendment will not materially
and adversely affect the interest of any Noteholder or the Securities Insurer.
An amendment described above shall be deemed not to adversely affect in any
material respects
the interests of any Noteholder or the Securities Insurer 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, if no
Securities Insurer Default has occurred and is continuing, the Securities
Insurer or, if a Securities Insurer Default has occurred and is continuing, 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 the Securities Insurer or the 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 Securities Insurer or Noteholders or (ii) reduce the aforesaid
percentages 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, the
Securities Insurer 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 U.S. Bank in Other Capacities.
Nothing in this Agreement shall affect any obligation that U.S. Bank
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
and the Securities Insurer 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 insistence of the Indenture Trustee, the Securities Insurer and the Owner
Trust.
Section 21. Bankruptcy Matters.
No party to this Agreement shall take any action to cause the Owner
Trust to dissolve in whole or in part or file a voluntary petition or otherwise
initiate proceedings to have the Owner Trust adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings against
the Owner Trust, or file a petition seeking or consenting to reorganization or
relief of the Owner Trust 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 seek or consent to the appointment of any trustee,
receiver, conservator, assignee, sequestrator, custodian, liquidator (or other
similar official) of the Owner Trust or of all or any substantial part of the
properties and assets of the Owner Trust, or cause the Owner Trust to make any
general assignment for the benefit of creditors of the Owner Trust or take any
action in furtherance of any of the above actions.
Section 22. 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.
Section 23. Third Party Beneficiary.
The parties hereto acknowledge that the Securities Insurer is an
express third party beneficiary hereof entitled to enforce any rights reserved
to it hereunder as if it were actually a party hereto.
[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.
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-3
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
By:
--------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Administrator,
By:
--------------------------------------
Name:
Title:
EMPIRE FUNDING CORP.,
as the Company and as Servicer,
By:
--------------------------------------
Name:
Title:
