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ADMINISTRATION AGREEMENT
dated as of June 1, 1999
among
FREMONT HOME LOAN OWNER TRUST 1999-2
(the "Issuer"),
FIRST UNION NATIONAL BANK,
(the "Administrator")
and
FREMONT INVESTMENT & LOAN
(the "Company" and "Master Servicer")
Home Loan Asset Backed Notes, Series 1999-2
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TABLE OF CONTENTS
Page
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 June 1, 1999, among FREMONT
HOME LOAN OWNER TRUST 1999-2, 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 June 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
1999-2 (the "Notes");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of June 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 June 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 June 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, dated
as of June 1, 1999, which incorporates the Agreement Regarding Standard
Servicing Terms, 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
10.01);
(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, the Master Servicer, the Depositor 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(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(a));
(M) notifying the Rating Agencies and the Servicer 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 10.2 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 1999-2
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
with a copy to the Company at
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 1999-2
(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 1999-2
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, each of the parties hereto has caused to be
executed in its name and on its behalf by a duly authorized officer, as of the
day and year first above written, this ADMINISTRATION AGREEMENT.
FREMONT HOME LOAN OWNER TRUST 1999-2, as
Issuer
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:
Title:
FREMONT INVESTMENT & LOAN,
as the Company and as Master Servicer
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President & Chief
Financial Officer