ADMINISTRATION AGREEMENT
dated as of March 1, 1999
among
FREMONT HOME LOAN OWNER TRUST 1999-1
(the "Issuer"),
FIRST UNION NATIONAL BANK,
(the "Administrator")
and
FREMONT INVESTMENT & LOAN
(the "Company" and "Master Servicer")
Home Loan Asset Backed Notes, Series 1999-1
TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator...................................
Section 2. Duties of the Master Servicer with Respect to the Indenture...
Section 3. Records.......................................................
Section 4. Compensation..................................................
Section 5. Additional Information to Be Furnished to the Issuer..........
Section 6. Independence of the Administrator.............................
Section 7. No Joint Venture..............................................
Section 8. Other Activities of Administrator and Master Servicer.........
Section 9. Term of Agreement; Resignation and Removal of Administrator
or Master Servicer...........................................
Section 10. Action upon Termination, Resignation or Removal of the
Administrator................................................
Section 11. Notices.......................................................
Section 12. Amendments....................................................
Section 13. Successor and Assigns.........................................
Section 14. Governing Law.................................................
Section 15. Headings......................................................
Section 16. Counterparts..................................................
Section 17. Severability..................................................
Section 18. Not Applicable to First Union in Other Capacities.............
Section 19. Limitation of Liability of Owner Trustee......................
Section 20. Benefit of Agreement..........................................
Section 21. Bankruptcy Matters............................................
Section 22. Capitalized Terms.............................................
Section 23. Third Party Beneficiary.......................................
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT dated as of March 1, 1999, among
FREMONT HOME LOAN OWNER TRUST 1999-1, a Delaware business trust, as issuer (the
"Issuer"), FIRST UNION NATIONAL BANK, a national banking association, not in its
individual capacity but solely as administrator ("First Union" and in such
capacity, the "Administrator") and FREMONT INVESTMENT & LOAN, a California
industrial loan company, as the company and master servicer (respectively, the
"Company" and "Master 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 March 1, 1999 (the
"Owner Trust Agreement"), among PaineWebber Mortgage Acceptance Corporation IV,
as depositor (the "Depositor"), Wilmington Trust Company, as Owner Trustee,
First Union, as paying agent (in such capacity, the "Paying Agent") and Fremont
Investment & Loan;
WHEREAS, the Issuer will issue Home Loan Asset Backed Notes,
Series 1999-1 (the "Notes");
WHEREAS, the Notes will be secured by certain collateral, as
more particularly set forth in the Indenture dated as of March 1, 1999 (the
"Indenture"), between the Issuer and First Union, 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 Master
Servicing Agreement dated as of March 1, 1999 (the "Sale and Servicing
Agreement"), among the Issuer, the Company, as Master Servicer and Transferor,
the Depositor and the Indenture Trustee , (ii) the Letter of Representations,
among the Issuer, the Indenture Trustee and The Depository Trust Company
relating to the Notes (the "Note Depository Agreement"), (iii) the Insurance and
Indemnity Agreement, dated as of March 1, 1999 (the "Insurance Agreement"),
among the Securities Insurer, the Company, as Transferor and Master Servicer,
the Depositor and the Issuer, (iv) the Indenture, (v) the Servicing Agreement
which incorporates the Agreement Regarding Standard Servicing Terms, each dated
as of March 1, 1999 (collectively, the "Servicing Agreement") between the
Company and Fairbanks Capital Corp. as Servicer and (vi) the Owner Trust
Agreement (the Sale and Servicing Agreement, the Note Depository Agreement, the
Insurance Agreement, the Indenture, the Servicing 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
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
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 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 of the Administrator set forth herein. In
addition, when it deems necessary consistent with its
obligations hereunder, 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 Sections 4.05 and 11.03
of the Sale and Servicing Agreement, Sections 2.05, 2.08, 3.03
and 6.03 of the Insurance Agreement, the provisions of the
Indenture set forth below and the Note Depository Agreement.
The Administrator shall carry out in a timely fashion, and in
accordance with the provisions of the Indenture, all duties of
the Issuer pursuant to the terms of this Agreement. The
Administrator shall have absolute discretion in the
performance of its obligations hereunder and shall have no
obligation to notify the Owner Trustee of its actions except
as set forth in the Indenture. In addition to the foregoing,
the Administrator shall take, or cause to be taken, 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) the preparation of the Notes and the
execution or directing the Owner Trustee to execute
the Notes 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) [Reserved.]
(F) the maintenance of an office in the City
of Charlotte, North Carolina, 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 of which it has knowledge (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 of which the
Administrator has knowledge under the Sale and
Servicing Agreement by the Master Servicer or the
Transferor and, if such an Event of Default arises
from the failure of the Master 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 enforce the
obligations of such parties thereunder (Section
3.07(c));
(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(e));
(M) notifying the Rating Agencies, the
Master Servicer and the Securities Issuer of a
redemption of the Notes (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 Master 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);
(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; and
(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 accounting and reports to Owners and the
performance of the tax duties set forth in (i) Section 5.2(c)
of the Owner Trust Agreement and (ii) 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 and the
Administrator shall receive written notification if there
shall be two or more beneficial owners of the Owner Trust.
(b) Duties with respect to the Owner Trust Agreement.
(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.
(c) 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 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) preparing, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.09);
(ii) preparation 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 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
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 or the Servicing Agreement (Section 3.07);
(v) compliance with any directive of the Indenture
Trustee with respect to the sale of the 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
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 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 shall indemnify each of the Owner Trustee
and the Paying Agent, and their respective successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against any Indemnified Party in any way relating to or arising out of this
Agreement, the Related Agreements, the Trust Estate, the administration of the
Trust Estate or the action or inaction of the Owner Trustee hereunder or
thereunder other than any loss, liability or expense incurred as a result of the
gross negligence, willful misconduct or bad faith of the Owner Trustee or the
Paying Agent, respectively. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the Paying Agent
or the termination of this Agreement or the Owner Trust Agreement. In any event
of any claim, action or proceeding for which indemnity will be sought pursuant
to this Section, the Indemnified Party's choice of legal counsel shall be
subject to the approval of the Company, which approval shall not be unreasonably
withheld.
(c) Additional Duties. In addition to the duties of the
Master Servicer set forth above, the Master Servicer 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 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.
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 upon reasonable prior
notice.
Section 4. Compensation.
The Administrator will perform the duties and provide the
services called for under Section 1 hereof in consideration for the compensation
it receives as Indenture Trustee 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 Master
Servicer. The Administrator shall be entitled to reimbursement by the Company
for all reasonable out-of-pocket expenses incurred or made by it hereunder. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Administrator's agents, counsel, accountants and experts and
Opinions of Counsel required hereunder. The Company agrees to indemnify the
Administrator against any and all loss, liability or expense (including
attorneys' fees) incurred by it in connection with the performance of its duties
hereunder. The Administrator shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Administrator so to notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend any such claim, and the Administrator may have separate counsel
reasonably acceptable to the Company and the Company shall pay the reasonable
fees and expenses of such counsel. The Company shall not be required to
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Company through the Administrator's own willful misconduct,
negligence or bad faith.
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 reasonably available
to the Administrator 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 Master 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 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.
Section 9. Term of Agreement; Resignation and Removal of
Administrator or Master 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
Master 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 or the Master Servicer immediately upon written notice of
termination from the Issuer to the Administrator or Master Servicer, as
applicable, if any of the following events occurs:
(i) the Administrator or the Master Servicer, as
applicable, 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 or the Master Servicer, as applicable, 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 the
Master Servicer, as applicable, or any substantial part of its
property or orders the winding-up or liquidation of its
affairs; or
(iii) the Administrator or the Master Servicer, as
applicable, 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 the Master Servicer, as applicable, 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 and the Master Servicer each agree 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
Master Servicer, respectively, pursuant to this Section 9 shall be effective
until (i) a successor Administrator or Master Servicer, as the case may be,
shall have been appointed by the Issuer and (ii) such successor Administrator or
Master Servicer shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator or Master Servicer is bound
hereunder.
(f) The appointment of any successor Administrator or Master
Servicer 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 Master Servicer's appointment hereunder will terminate
automatically on the Master 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), (c) or (d), 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
Fremont Home Loan Owner Trust 1999-1
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
Fremont Investment & Loan
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
(b) if to the Administrator, to
First Union National Bank
Corporate Trust Group, NC 1179
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 28288-1179
Attention: Manager-Structured Finance Trust Group
(c) if to the Master Servicer, to
Fremont Investment & Loan
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
(d) if to the Servicer, to
Fairbanks Capital Corp.
0000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Fremont Series 1999-1
(e) if to the Securities Insurer, to
Financial Security Assurance, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Oversight Re: Fremont Home
Loan Owner Trust 1999-1
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
Master 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 Master 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 Master 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 Master Servicer, subject to the satisfaction of the
Rating Agency Condition in respect thereof, provided however, that the consent
of the Securities Insurer shall not be required upon the occurrence of a
Securities Insurer Default. 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 Master Servicer to a corporation or other organization that is a
successor (by merger, consolidation or purchase of assets) to the Administrator
or an affiliate of the Administrator; provided, however, that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Master 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 First Union in Other Capacities.
Nothing in this Agreement shall affect any obligation that
First Union 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.
FREMONT HOME LOAN OWNER
TRUST 1999-1
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
By: _______________________________
Name:
Title:
FIRST UNION NATIONAL BANK, not in
its individual capacity but
solely as Administrator,
By: _______________________________
Name: Xxxxxx Xxxxxxxx
Title: Vice President
FREMONT INVESTMENT & LOAN,
as the Company and as Master
Servicer,
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
