EXHIBIT 4.3
XXXXX WHOLE LOAN HOME EQUITY TRUST 2002-A,
as Issuer,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Administrator,
and
XXXXX UNION BANK AND TRUST COMPANY,
as Master Servicer
ADMINISTRATION AGREEMENT
Dated as of May 31, 2002
TABLE OF CONTENTS
PAGE
Section 1. Duties of Administrator........................................................................2
Section 2. Duties of the Master Servicer With Respect to the Indenture....................................3
Section 3. Records........................................................................................5
Section 4. Compensation...................................................................................5
Section 5. Additional Information to be Furnished to the Issuer...........................................5
Section 6. Independence of the Administrator..............................................................5
Section 7. No Joint Venture...............................................................................5
Section 8. Other Activities of Administrator and Master Servicer..........................................5
Section 9. Term of Agreement; Resignation and Removal.....................................................6
Section 10. Action upon Termination, Resignation or Removal................................................7
Section 11. Notices........................................................................................7
Section 12. Amendments.....................................................................................7
Section 13. Successor and Assigns..........................................................................8
Section 14. Governing Law..................................................................................8
Section 15. Headings.......................................................................................8
Section 16. Counterparts...................................................................................8
Section 17. Severability...................................................................................9
Section 18. Limitation of Liability of Owner Trustee.......................................................9
Section 19. Benefit of Agreement...........................................................................9
Section 20. Bankruptcy Matters.............................................................................9
Section 21. Rights of the Enhancer.........................................................................9
Section 22. Third Party Beneficiary.......................................................................10
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This Administration Agreement, dated as of May 31, 2002, is among Xxxxx
Whole Loan Home Equity Trust 2002-A, a Delaware business trust, as issuer (the
"Issuer"), Xxxxx Fargo Bank Minnesota, National Association, a national banking
corporation, as administrator (the "Administrator"), and Xxxxx Union Bank and
Trust Company, a bank chartered under the laws of the State of Indiana, as
master servicer (the "Master Servicer").
WlTNESSETH:
WHEREAS, the Issuer is a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801 et seq.) created and governed by a trust
agreement dated as of May 31, 2002 (the "Trust Agreement"), between Bear Xxxxxxx
Asset Backed Securities, Inc., as depositor (the "Depositor"), and Wilmington
Trust Company, as owner trustee (the "Owner Trustee");
WHEREAS, the Issuer will issue Home Equity Loan-Backed Notes, Series
2002-A (the "Notes") and Home Equity Loan-Backed Certificates, Series 2002-A
(the "Certificates" and, together with the Notes, the "Securities");
WHEREAS, the Notes will be issued pursuant to an indenture dated as of
May 31, 2002 (the "Indenture"; all capitalized terms used and not defined herein
shall have the meaning assigned thereto in Appendix A to the Indenture), between
the Issuer and Xxxxx Fargo Bank Minnesota, National Association, as indenture
trustee (in such capacity, the "Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust
Agreement and will represent undivided beneficial ownership interests in the
Trust;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Securities, including (a) a sale and servicing
agreement dated as of May 31, 2002 (the "Sale and Servicing Agreement"), among
the Issuer, the Depositor, the Master Servicer and the Indenture Trustee, (b)
the letter of representations dated June 20, 2002, among the Issuer, the
Indenture Trustee and The Depository Trust Company relating to the Offered Notes
(the "Depository Agreement"), (c) the Indenture, (d) the insurance agreement
dated as of June 1, 2002 (the "Insurance Agreement"), among the Issuer, the
Enhancer, the Master Servicer, the Depositor and the Indenture Trustee, and (e)
the Trust Agreement (the Sale and Servicing Agreement, the Depository Agreement,
the Indenture, the Insurance Agreement and the 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 (a) the Notes and the collateral
pledged to support the Notes pursuant to the Indenture (the "Collateral") and
(b) the beneficial ownership interests in the Issuer represented by the
Certificates;
WHEREAS, the Issuer desires to have the Administrator and the Master
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
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WHEREAS, the Administrator and the Master 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 Administrator. The Administrator shall perform all
of the duties of the Issuer under the Depository Agreement. The Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer under
the Sale and Servicing Agreement, the Indenture and the Depository Agreement.
The Administrator 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):
(a) to maintain an office for transfers at the Corporate Trust Office
of the Indenture Trustee (Section 3.02);
(b) to cause the Paying Agents to engage in certain specified
activities and undertake certain specified activities with respect to any Paying
Agents (Section 3.03);
(c) to enforce the obligation of the Master Servicer under the Sale
and Servicing Agreement for recording Assignments of Mortgages (Section 3.13);
(d) to give prompt written notice of each Event of Default under the
Indenture, to the extent the Administrator has knowledge thereof (Section 3.23);
(e) to execute and deliver any further instruments in order to carry
out the purpose of the Indenture (Section 3.24);
(f) reserved;
(g) to approve a successor Depository and give the order to allow the
Owner Trustee to execute the original Notes on its behalf (Section 4.01);
(h) to undertake the activities required to register, transfer and
exchange the Notes (Section 4.02);
(i) to undertake the activities required to replace mutilated,
destroyed, lost or stolen Notes (Section 4.03);
(j) to undertake the activities required to cancel the Notes (other
than the signature of the Owner Trustee thereon) (Section 4.05);
(k) upon prior written notice from the Master Servicer, (accompanied
by any required Officer's Certificate or Opinion of Counsel required of the
Issuer, which in the case of the Officer's Certificate may be executed by the
Master Servicer on behalf of the Issuer), to execute and deliver the required
items to satisfy and discharge the Indenture (Section 4.11);
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(l) to issue the demand to repay all monies held by the Paying Agent
upon discharge of the Indenture (Section 4.13);
(m) to direct and cause the creation of temporary Notes (Section
4.15);
(n) at the written request of the Indenture Trustee, to take all
lawful action to compel the performance of the Seller and the Master Servicer
(Section 5.17);
(o) to furnish names and addresses of Noteholders to the Indenture
Trustee and, with respect to the Group I Noteholders, the Enhancer (Section
7.01);
(p) to make the required filings with the Commission (Section 7.03);
(q) to determine new Notes pursuant to a supplemental indenture
(Section 9.06); and
(r) to effect the recording of the Indenture upon notification of the
need to record the Indenture (Section 10.14).
Except as otherwise set forth in Section 4.02 of the Trust Agreement
and Section 2, in addition to the duties of the Administrator set forth above,
the Administrator 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.
The Administrator shall perform the duties, if any, expressly required
to be performed by the Administrator under the Trust Agreement and the Sale and
Servicing Agreement.
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. The
Administrator shall have all of the rights and protections of the Indenture
Trustee set forth in Article VI of the Indenture.
Section 2. Duties of the Master Servicer With Respect to the Indenture.
(a) The Master Servicer 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) to effect any required qualification to do business of the
Issuer in a jurisdiction other than Delaware (Section 3.04);
(ii) to give written notice to the Indenture Trustee of the
Legal Final Payment Date for any Class of Notes (Section 3.05(c));
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(iii) to cause delivery of the Opinions of Counsel regarding the
Trust Estate required on the Closing Date and annually thereafter (Section
3.07);
(iv) to prepare and deliver to the Issuer for signature the
annual statement as to Issuer compliance (Section 3.10);
(v) to deliver the required items in the event of a
consolidation, merger or conveyance of assets (Section 3.16);
(vi) to deliver an Officer's Certificate upon learning of the
occurrence of an Event of Default (Section 5.01);
(vii) to remove the Indenture Trustee and appoint a successor
Indenture Trustee upon the occurrence of certain events (Section 6.08);
(viii) to furnish an Officer's Certificate pursuant to Section
8.03 of the Indenture (Section 8.03);
(ix) to issue a request to release property from the Lien of
the Indenture (Section 8.05);
(x) to request a supplemental indenture not requiring consent
of the Noteholders (Section 9.01) and provide any required Opinion of Counsel or
other certification in connection therewith;
(xi) to request a supplemental indenture requiring consent of
the Noteholders (Section 9.02); and
(xii) to provide the Officer's Certificates and Opinions of
Counsel required pursuant to Section 10.01 of the Indenture.
(b) Subject to Section 5, and in accordance with the directions of
the Owner Trustee, the Master Servicer 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 Master Servicer.
(c) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Master Servicer shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Trust's payments (or allocations of income) to a
Certificateholder as contemplated by Section 5.01(b) of the 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.
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(d) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Master Servicer shall be responsible for
performance of its duties as set forth in Section 5.05 of the Trust Agreement
with respect to, among other things, accounting and reports to
Certificateholders and holders of the Non-Offered Subordinate Notes (other than
the Class IIX-IO Notes); provided, however, that the Master Servicer shall be
responsible for the distribution of the Schedule K-1s necessary to enable each
Certificateholder and each holder of the Non-Offered Subordinate Notes (other
than the Class IIX-IO Notes) to prepare its federal and state income tax
returns.
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
Enhancer 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 for so long as it remains
Indenture Trustee under the Indenture. The Administrator shall be entitled to
receive on each Payment Date reimbursement from the Master Servicer for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable expenses and disbursements of the Administrator's agents,
counsel, accountants and experts.
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 Master Servicer 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 Master Servicer, respectively, and
either of 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 Master Servicer.
Nothing herein shall prevent the Administrator, the Master 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.
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Section 9. Term of Agreement; Resignation and Removal.
(a) This Agreement shall continue in force until the termination of
the Trust Agreement in accordance with its terms, upon which event this
Agreement shall automatically terminate.
(b) Subject to Section 9(e), the Administrator may resign from its
duties hereunder by providing the Issuer, the Enhancer and the Depositor with at
least 60 days' prior written notice.
(c) Subject to Section 9(e), the Depositor may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice, with a copy to the Enhancer.
(d) Subject to Section 9(e), the Depositor may remove the
Administrator, immediately upon written notice of termination from the Depositor
to the Administrator, with a copy to the Enhancer, if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default, shall not
cure such default within ten days (or, if such default cannot be cured within
such period, shall not give within ten days of such notice such assurance of
cure as shall be reasonably satisfactory to the Depositor);
(ii) a court having jurisdiction in the premises shall enter 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 Proceeding
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary Proceeding
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary Proceeding under any such law, shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit of its
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section shall occur, it shall give written notice thereof
to the Depositor and the Master Servicer, with a copy to the Enhancer, within
seven days thereafter.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator, acceptable to
the Enhancer, shall have been appointed by the Depositor and the Issuer and (ii)
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
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(f) Subject to Sections 9(e) and 9(b), the Administrator acknowledges
that upon the appointment of a successor Indenture Trustee pursuant to 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 as a condition of its appointment as successor Indenture Trustee.
Section 10. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
9(b) or the resignation or removal of the Administrator pursuant to Section 9(b)
or 9(c), respectively, the Administrator shall be entitled to 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 Depositor all property and documents of or relating to the
Collateral then in the custody of the Administrator in the event of the
resignation or removal of the Administrator pursuant to Section 9(b), (c) or
(d), respectively; and the Administrator shall cooperate with the Issuer and the
Depositor 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
c/o Wilmington Trust Company, as Owner Trustee, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department
(with a copy to the Master Servicer, the Depositor and the Administrator); (b)
if to the Master Servicer, to 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxx, Esq. and Xxxxxx Xxxxx (with a copy to Xxxxx Xxxxxx,
Xxxx Xxxxxxx and Xxxx Xxxxxxx, Esq., 00000 Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000); (c) if to the Administrator, to 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 (with a copy to the Indenture Trustee at Xxxxx Fargo
Center, MAC # 9311-161, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services); (d) if the Depositor, to 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Securities
Group; (e) if to the Enhancer, to MBIA Insurance Corporation, 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management-Structured
Finance (IPM-SF), Xxxxx Whole Loan Home Equity Trust 2002-A; and (f) as to each
of the foregoing Persons, at such other address as shall be designated by such
Person in a written notice to the other foregoing Persons. 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 the parties hereto with the consent of the Enhancer (i) to cure any
ambiguity, correct any mistake or supplement any provision of this Agreement
that may be inconsistent with any other provision of this Agreement, add any
provision that provides additional rights to the Certificateholders or
Noteholders, deal with any matter not covered in this Agreement (i.e., to give
effect to the intent of the parties), or ensure that the Trust and any portion
thereof is not classified as a taxable mortgage pool or an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes; provided, that (A) (i) such amendment will not, in the good faith
judgment of the parties thereto, materially and adversely affect the interest of
any Certificateholder or Noteholder, and (ii) an Opinion of Counsel is delivered
to the Owner Trustee
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and the Enhancer to the effect that such amendment will not materially and
adversely affect the interest of any Certificateholder or Noteholder or (B) to
the extent affected thereby, with the consent of the Holders of Notes evidencing
not less than a majority of the Note Balance of the Notes and, to the extent
affected thereby, the consent of the Holders of Certificates evidencing not less
than a majority of the Percentage Interests of the Certificates 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 Certificateholders; provided that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Mortgage Loans or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders without the consent of the Holders of each outstanding Note
or Certificate affected thereby, or (b) reduce the aforesaid percentage of the
Note Balance of the Notes and the Percentage Interests of the Certificates
required to consent to any such amendment, without the consent of the Holders of
all the outstanding Notes, the Holders of all outstanding Certificates.
Promptly after the execution of any such amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Indenture Trustee. It
shall not be necessary for the consent of the Certificateholder or Noteholder
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of the Certificateholder or Noteholders provided for in this Agreement
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by the Certificateholder or Noteholders shall be subject to
such reasonable requirements as the Owner Trustee or Indenture Trustee may
prescribe from time to time.
Section 13. Successor and Assigns. This Agreement may not be assigned
by the Administrator. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of any Person to a Person that
is a successor by merger, consolidation or purchase of assets to the
Administrator, provided that such successor executes and delivers to the other
parties hereto an agreement in which such successor agrees to be bound hereunder
by the terms of such assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any permitted
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, 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 are 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 any number
of counterparts, each of which when so executed shall together constitute but
one and the same instrument.
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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. 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, 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 Trust Agreement.
Section 19. Benefit of Agreement. It is expressly agreed that in
performing its duties under this Agreement, the Administrator will act for the
benefit of the Securityholders and the Owner Trustee as well as for the benefit
of the Trust, and that such obligations on the part of the Administrator shall
be enforceable at the instance of the other parties hereto.
Section 20. Bankruptcy Matters. No party to this Agreement shall take
any action to cause the Trust to dissolve in whole or in part or file a
voluntary petition or otherwise initiate Proceedings to have the Trust
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency Proceedings against the Trust, file a petition seeking or
consenting to reorganization or relief of the Trust as debtor under any
applicable federal or state law relating to bankruptcy, insolvency or other
relief for debtors with respect to the Trust; seek or consent to the appointment
of any trustee, receiver, conservator, assignee, sequestrator, custodian,
liquidator (or other similar official) of the Trust or of all or any substantial
part of the properties and assets of the Trust, cause the Trust to make any
general assignment for the benefit of its creditors or otherwise take any action
in furtherance of any of the above actions.
Section 21. Rights of the Enhancer Except to the extent otherwise
provided in this Agreement, (i) the rights and benefits of the Enhancer in this
Agreement relate only to the Group I Notes and the Mortgage Loans assigned to
Group I and (ii) all provisions in this Agreement referring to the consent or
approval of the Enhancer or actions with respect to the Enhancer shall apply and
be implemented only to the extent that such consent, approval or actions affect
or concern the Group I Notes (or the Enhancer's obligations in respect thereof)
or the Mortgage Loans assigned to Group I. Notwithstanding any provision in this
Agreement to the contrary, all rights and benefits of the Enhancer in this
Agreement (including but not limited to consent rights, rights to notices and
rights with respect to opinions) shall terminate upon the later of (a) the
repayment in full of the Group I Notes and the payment to the Enhancer of any
unpaid amounts owed to it under the Insurance Agreement with interest thereon at
the Late Payment Rate as specified in the Insurance Agreement and (b) the
termination of all of the Enhancer's obligations under the Policy.
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Section 22. Third Party Beneficiary The Enhancer shall be an express
and intended third party beneficiary of this Agreement entitled to enforce this
Agreement as if it were a party hereto.
* * *
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IN WITNESS WHEREOF, the Issuer, the Administrator and the Master
Servicer have caused this Agreement to be duly executed by their respective
officers or representatives as of the date and year first above written.
XXXXX WHOLE LOAN HOME EQUITY
TRUST 2002-A,
as Issuer
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By:_/s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Administrator
By:_/s/ XXXXX X. XXXXXX
-----------------------------------------
Title: Xxxxx X. Xxxxxx
Name: Vice President
XXXXX UNION BANK AND TRUST
COMPANY, as Master Servicer
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President-Business Development
Home Equity Lending
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