SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1 TO CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: June 23, 1998
(Date of earliest event reported)
Commission File No. 333-51375
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV (as depositor under the Sale and
Servicing Agreement, dated as of June 1, 1998, relating to the Empire Funding
Home Loan Owner Trust 1998-2, Home Loan Asset Backed Notes, Series 1998-2)
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV
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Delaware 06-1204982
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(State of Incorporation) (I.R.S. Employer Identification No.)
1285 Avenue of the Americas
New York, New York 10019
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Address of principal executive offices (Zip Code)
(212) 713-2000
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Registrant's Telephone Number, including area code
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(Former name, former address and former fiscal year, if changed since last
report)
<PAGE>
ITEM 5. Other Events
On June 23, 1998, Empire Funding Home Loan Owner Trust 1998-2 (the "Owner
Trust") issued Home Loan Asset Backed Notes, Series 1998-2, Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-IO, Class M-1, Class
M-2 and Class B-1 (the "Offered Notes"), having an aggregate original principal
balance of $293,910,000. The Offered Notes were issued pursuant to an Indenture,
dated as of June 1, 1998 (the "Indenture") between Empire Funding Home Loan
Owner Trust 1998-2 (the "Owner Trust") and U.S. Bank National Association,
("U.S. Bank," in such capacity, the "Indenture Trustee"), a copy of which is
filed as an exhibit hereto. Home Loan Asset Backed Notes, Series 1998-2, Class
B-2 having an aggregate initial principal balance of $9,090,000 (the "Private
Notes" and, together with the Offered Notes, the "Notes"), were also issued
pursuant to the Indenture. The Owner Trust was formed by PaineWebber Mortgage
Acceptance Corporation IV, a Delaware corporation (the "Registrant"), pursuant
to an Owner Trust Agreement, dated as of June 1, 1998 (the "Owner Trust
Agreement") among the Registrant, Empire Funding Corp. (the "Transferor") and
Wilmington Trust Company (the "Owner Trustee"), a copy of which is filed as an
exhibit hereto. The Notes are secured by the assets of the Owner Trust,
consisting of a grantor trust certificate (the "Grantor Trust Certificate")
evidencing 100% of the beneficial ownership interests in Empire Funding Grantor
Trust 1998-2 (the "Grantor Trust"). The Grantor Trust was established pursuant
to a Grantor Trust Agreement dated as of June 1, 1998 (the "Grantor Trust
Agreement") among the Registrant, U.S. Bank, as grantor trustee (in such
capacity, the "Grantor Trustee") and the Transferor, a copy of which is filed as
an exhibit hereto. The assets of the Grantor Trust consist primarily of a pool
(the "Pool") of closed-end, fixed-rate home loans (the "Loans"), substantially
all of which are unsecured or secured primarily by junior-lien mortgages, deeds
of trust or other similar security instruments. The Grantor Trust Certificate
was sold by the Registrant to the Owner Trust pursuant to a Sale and Servicing
Agreement dated as of June 1, 1998 (the "Sale and Servicing Agreement") among
the Owner Trust, as issuer, the Registrant, U.S. Bank, as indenture trustee (in
such capacity, the "Indenture Trustee"), Empire Funding Corp., as servicer and
transferor and the Grantor Trustee, a copy of which is filed as an exhibit
hereto.
In addition, the Owner Trust and U.S. Bank, as administrator of the Owner
Trust have entered into an Administration Agreement, dated as of June 1, 1998
(the "Administration Agreement"), a copy of which is filed as an exhibit hereto.
Interest on the Offered Notes will be distributed on each Payment Date (as
defined in the Sale and Servicing Agreement). Monthly payments in reduction of
the principal balance of the Offered Notes will be allocated to the Offered
Notes in accordance with the priorities set forth in the Sale and Servicing
Agreement.
<PAGE>
ITEM 7. Financial Statements and Exhibits
(c) Exhibits
Item 601(a)
of Regulation S-K
Exhibit No. Description
- ----------- -----------
(EX-4.1) Indenture, dated as of June 1, 1998,
between Empire Funding Home Loan Owner
Trust 1998-2 and U.S. Bank National
Association.
(EX-4.2) Sale and Servicing Agreement, dated as
of June 1, 1998, among PaineWebber
Mortgage Acceptance Corporation IV,
Empire Funding Home Loan Owner Trust
1998-2, Empire Funding Corp. and U.S.
Bank National Association.
(EX-99.1) Administration Agreement, dated as of
June 1, 1998, among Empire Funding Home
Loan Owner Trust 1998-2, Empire Funding
Corp. and U.S. Bank National
Association.
(EX-99.2) Owner Trust Agreement, dated as of June
1, 1998, among PaineWebber Mortgage
Acceptance Corporation IV, Empire
Funding Corp., Wilmington Trust Company
and U.S. Bank National Association.
(EX-99.3) Grantor Trust Agreement, dated as of
June 1, 1998 among PaineWebber Mortgage
Acceptance Corporation IV, Empire
Funding Corp. and U.S. Bank National
Association.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PAINEWEBBER MORTGAGE
ACCEPTANCE CORPORATION IV
August 4, 1998
By: /s/ Barbara Dawson
------------------
Barbara Dawson
Senior Vice President
<PAGE>
INDEX TO EXHIBITS
Paper (P) or
Exhibit No. Description Electronic(E)
- ----------- ----------- -------------
(EX-4.1) Indenture, dated as of June 1, 1998, E
between Empire Funding Home Loan Owner
Trust 1998-2 and U.S. Bank National
Association.
(EX-4.2) Sale and Servicing Agreement, dated as E
of June 1, 1998, among PaineWebber
Mortgage Acceptance Corporation IV,
Empire Funding Home Loan Owner Trust
1998-2, Empire Funding Corp. and U.S.
Bank National Association.
(EX-99.1) Administration Agreement, dated as of E
June 1, 1998, among Empire Funding Home
Loan Owner Trust 1998-2, Empire Funding
Corp. and U.S. Bank National
Association.
(EX-99.2) Owner Trust Agreement, dated as of June E
1, 1998, among PaineWebber Mortgage
Acceptance Corporation IV, Empire
Funding Corp., Wilmington Trust Company
and U.S. Bank National Association.
(EX-99.3) Grantor Trust Agreement, dated as of E
June 1, 1998 among PaineWebber Mortgage
Acceptance Corporation IV, Empire
Funding Corp. and U.S. Bank National
Association.
================================================================================
INDENTURE
between
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2,
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of June 1, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
Home Loan Asset Backed Notes,
Series 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
Section 1.02. Incorporation by Reference of Trust Indenture Act
Section 1.03. Rules of Construction
ARTICLE II
THE NOTES
Section 2.01. Form
Section 2.02. Execution, Authentication, Delivery and Dating
Section 2.03. Registration; Registration of Transfer and Exchange
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes
Section 2.05. Persons Deemed Note Owners
Section 2.06. Payment of Principal and/or Interest; Defaulted Interest
Section 2.07. Cancellation
Section 2.08. Conditions Precedent to the Authentication of the Notes
Section 2.09. Release of Collateral
Section 2.10. Book-Entry Notes
Section 2.11. Notices to Clearing Agency
Section 2.12. Definitive Notes
Section 2.13. Tax Treatment
Section 2.14. Limitations on Transfer of the Class B-2 Notes
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and/or Interest
Section 3.02. Maintenance of Office or Agency
Section 3.03. Money for Payments to Be Held in Trust
Section 3.04. Existence
Section 3.05. Protection of Collateral
Section 3.06. Annual Opinions as to Collateral
Section 3.07. Performance of Obligations
Section 3.08. Negative Covenants
Section 3.09. Annual Statement as to Compliance
Section 3.10. Covenants of the Issuer
Section 3.11. Restricted Payments
Section 3.12. Treatment of Notes as Debt for Tax Purposes
Section 3.13. Notice of Events of Default
Section 3.14. Further Instruments and Acts
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture
Section 4.02. Application of Trust Money
Section 4.03. Repayment of Moneys Held by Paying Agent
ARTICLE V
REMEDIES
Section 5.01. Events of Default
Section 5.02. Acceleration of Maturity; Rescission and Annulment
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee
Section 5.04. Remedies; Priorities
Section 5.05. Optional Preservation of the Collateral
Section 5.06. Limitation of Suits
Section 5.07. Unconditional Rights of Noteholders to Receive Principal
and/or Interest
Section 5.08. Restoration of Rights and Remedies
Section 5.09. Rights and Remedies Cumulative
Section 5.10. Delay or Omission Not a Waiver
Section 5.11. Control by Noteholders
Section 5.12. Waiver of Past Defaults
Section 5.13. Undertaking for Costs
Section 5.14. Waiver of Stay or Extension Laws
Section 5.15. Action on Notes
Section 5.16. Performance and Enforcement of Certain Obligations
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee
Section 6.02. Rights of Indenture Trustee
Section 6.03. Individual Rights of Indenture Trustee
Section 6.04. Indenture Trustee's Disclaimer
Section 6.05. Notices of Default
Section 6.06. Reports by Indenture Trustee to Holders
Section 6.07. Compensation and Indemnity
Section 6.08. Replacement of Indenture Trustee
Section 6.09. Successor Indenture Trustee by Merger
Section 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee
Section 6.11. Eligibility; Disqualification
Section 6.12. Preferential Collection of Claims Against Issuer
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders
Section 7.02. Preservation of Information; Communications to Noteholders
Section 7.03. Reports by Issuer
Section 7.04. Reports by Indenture Trustee
Section 7.05. 144A Information
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money
Section 8.02. Trust Accounts; Payments
Section 8.03. General Provisions Regarding Accounts
Section 8.04. Servicer's Monthly Statements
Section 8.05. Release of Collateral
Section 8.06. Opinion of Counsel
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders
Section 9.02. Supplemental Indentures with Consent of Noteholders
Section 9.03. Execution of Supplemental Indentures
Section 9.04. Effect of Supplemental Indentures
Section 9.05. Conformity with Trust Indenture Act
Section 9.06. Reference in Notes to Supplemental Indentures
Section 9.07. Amendments to Trust Agreement
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption
Section 10.02. Form of Redemption Notice
Section 10.03. Notes Payable on Redemption Date; Provision for
Payment of Indenture Trustee
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc.
Section 11.02. Form of Documents Delivered to Indenture Trustee
Section 11.03. Acts of Noteholders
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies
Section 11.05. Notices to Noteholders; Waiver
Section 11.06. Conflict with Trust Indenture Act
Section 11.07. Effect of Headings and Table of Contents
Section 11.08. Successors and Assigns
Section 11.09. Separability
Section 11.10. Benefits of Indenture
Section 11.11. Legal Holidays
Section 11.12. Governing Law
Section 11.13. Counterparts
Section 11.14. Recording of Indenture
Section 11.15. Trust Obligation
Section 11.16. No Petition
Section 11.17. Inspection
EXHIBITS
EXHIBIT A - Forms of Notes
EXHIBIT B-1 - Form of Transferor Affidavit (144A)
EXHIBIT B-2 - Form of Transferee Affidavit (Accredited Investor)
EXHIBIT B-3 - Form of ERISA Transfer Certificate
EXHIBIT C - Form of Securities Legend
<PAGE>
This Indenture entered into effective June 1, 1998, between EMPIRE FUNDING
HOME LOAN OWNER TRUST 1998-2, a Delaware business trust, as Issuer (the
"Issuer"), and U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee (the
"Indenture Trustee"),
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual covenants herein contained, the Issuer and
the Indenture Trustee hereby agree as follows for the benefit of each of them
and for the equal and ratable benefit of the holders of the Issuer's Class A-1
Floating Rate Home Loan Asset Backed Notes (the "Class A-1 Notes"), Class A-2
6.28% Home Loan Asset Backed Notes (the "Class A-2 Notes"), Class A-3 6.39% Home
Loan Asset Backed Notes (the "Class A-3 Notes"), Class A-4 6.53% Home Loan Asset
Backed Notes (the "Class A-4 Notes"), Class A-5 6.96% Home Loan Asset Backed
Notes (the "Class A-5 Notes"), Class A-6 6.72% Home Loan Asset Backed Notes (the
"Class A-6 Notes"), Class A-IO 5.09% Home Loan Asset Backed Notes (the "Class
A-IO Notes"), Class M-1 6.99% Home Loan Asset Backed Notes (the "Class M-1
Notes"), Class M-2 7.43% Home Loan Asset Backed Notes (the "Class M-2 Notes"),
Class B-1 9.03% Home Loan Asset Backed Notes (the "Class B-1 Notes") and Class
B-2 9.21% Home Loan Asset Backed Notes (the "Class B-2 Notes" and, together with
the Class A Notes, Class M-1 Notes, Class M-2 Notes and Class B-1 Notes, the
"Notes"):
GRANTING CLAUSE
Subject to the terms of this Indenture, the Issuer hereby Grants on the
Closing Date, to the Indenture Trustee, as Indenture Trustee for the benefit of
the Holders of the Notes, all of the Issuer's right, title and interest in and
to: (i) the Owner Trust Estate (as defined in the Sale and Servicing Agreement);
(ii) all right, title and interest of the Issuer in and to the Sale and
Servicing Agreement and the Grantor Trust Agreement (including the Grantor
Trustee's right to cause the Company to repurchase Home Loans from the Grantor
Trust under certain circumstances described therein); (iii) all present and
future claims, demands, causes of action and choses in action in respect of any
or all of the foregoing and all payments on or under and all proceeds of every
kind and nature whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing; (iv) all funds on deposit from time to time in the Trust Accounts
(including the Certificate Distribution Account); and (v) all other property of
the Owner Trust from time to time (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the
Notes, acknowledges such Grant, accepts the trusts hereunder and agrees to
perform its duties required in this Indenture to the best of its ability to the
end that the interests of the Holders of the Notes may adequately and
effectively be protected. The Indenture Trustee agrees and acknowledges that
possession of the Grantor Trust Certificate will be maintained by the Indenture
Trustee in St. Paul, Minnesota. The Indenture Trustee further agrees and
acknowledges that each other item of Collateral that is physically delivered to
the Indenture Trustee will be held by the Custodian on behalf of the Indenture
Trustee in St. Paul, Minnesota.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Act" has the meaning specified in Section 11.03(a) hereof.
"Administration Agreement" means the Administration Agreement dated as of
June 1, 1998, among the Administrator, the Issuer and the Company.
"Administrator" means U.S. Bank National Association, a national banking
association, or any successor Administrator under the Administration Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the list of
Authorized Officers delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Basic Documents" means the Certificate of Owner Trust, Certificate of
Grantor Trust, the Grantor Trust Agreement, the Owner Trust Agreement, this
Indenture, the Sale and Servicing Agreement, the Administration Agreement, the
Custodial Agreement, the Note Depository Agreement and other documents and
certificates delivered in connection herewith or therewith.
"Book-Entry Notes" means a beneficial interest in the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-IO, Class M-1, Class M-2,
Class B-1 or Class B-2 Notes, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 2.10 hereof.
"Business Day" means any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in The City of New York or the city in which
the corporate trust office of the Indenture Trustee is located are authorized or
obligated by law or executive order to be closed.
"Certificate of Grantor Trust" means the certificate of trust of the
Grantor Trust substantially in the form of Exhibit A to the Grantor Trust
Agreement.
"Certificate of Owner Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit C to the Owner Trust Agreement.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, Class A-5 Notes, Class A-6 Notes and the Class
A-IO Notes.
"Class A-1 Notes", "Class A-2 Notes", "Class A-3 Notes", "Class A-4 Notes",
"Class A-5 Notes", "Class A-6 Notes", "Class A-IO Notes", "Class B-1 Notes",
"Class B-2 Notes", "Class M-1 Notes" and "Class M-2 Notes" shall each have the
meaning assigned thereto in the "WITNESSETH THAT" Clause of this Indenture.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for which from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means June 23, 1998.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means Empire Funding Corp., an Oklahoma corporation, or any
successor in interest thereto.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is located at
180 East Fifth Street, St. Paul, Minnesota 55101; Attention: Structured Finance,
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee at the address designated by
such successor Indenture Trustee by notice to the Noteholders and the Issuer.
"DCR" means Duff & Phelps Credit Rating Co. or any successor thereto.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes" means any Class of Notes as set forth in Section 2.12
hereof.
"Depositor" shall mean PaineWebber Mortgage Acceptance Corporation IV, a
Delaware corporation, in its capacity as depositor under the Sale and Servicing
Agreement, or any successor in interest thereto.
"Depository Institution" means any depository institution or trust company,
including the Indenture Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated A-1 by S&P, Fitch and DCR (or comparable ratings if S&P, Fitch and DCR
are not the Rating Agencies).
"Due Period" means, with respect to any Payment Date and any Class of
Notes, the calendar month immediately preceding the month of such Payment Date.
"Event of Default" has the meaning specified in Section 5.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Fitch" means Fitch IBCA, Inc. or any successor thereto.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Grantor Trust" means Empire Funding Grantor Trust 1998-2, formed pursuant
to the Grantor Trust Agreement.
"Grantor Trust Agreement" means the Trust Agreement dated as of June 1,
1998, among PaineWebber Mortgage Acceptance Corporation IV, as Depositor, the
Company and the Grantor Trustee.
"Grantor Trust Certificate" means the trust certificate issued by the
Grantor Trust evidencing 100% of the beneficial ownership of the Grantor Trust.
"Grantor Trustee" means U.S. Bank National Association, a national banking
association, as Grantor Trustee under the Grantor Trust Agreement, or any
successor Grantor Trustee hereunder.
"Highest Priority Classes Notes" means, until the Class Principal Balances
(or Class Notional Balance in the case of the Class A-IO Notes) of all Classes
of Senior Notes are reduced to zero and all sums payable to the Holders of the
Senior Notes have been paid in full, the Senior Notes; when the Class Principal
Balances (or Class Notional Balance in the case of the Class A-IO Notes) of all
classes of Senior Notes have been reduced to zero and all amounts payable to the
Holders of the Senior Notes have been paid in full, the Class M-1 Notes; when
the Class Principal Balances (or Class Notional Balance in the case of the Class
A-IO Notes) of all Classes of Senior Notes and Class M-1 Notes have been reduced
to zero and all sums payable to the Holders of the Senior Notes and Class M-1
Notes have been paid in full, the Class M-2 Notes; when the Class Principal
Balances (or Class Notional Balance in the case of the Class A-IO Notes) of all
Classes of Senior Notes, Class M-1 Notes and Class M-2 Notes have been reduced
to zero and all sums payable to the Holders of the Senior Notes, Class M-1 Notes
and Class M-2 Notes have been paid in full, the Class B-1 Notes; when the Class
Principal Balances (or Class Notional Balance in the case of the Class A-IO
Notes) of all Classes of Senior Notes, Class M-1 Notes, Class M-2 Notes and
Class B-1 Notes have been reduced to zero and all sums payable to the Holders of
the Notes, Class M-1 Notes, Class M-2 Notes and Class B-1 Notes have been paid
in full, the Class B-2 Notes.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indenture Trustee" means U.S. Bank National Association, a national
banking association, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee hereunder.
"Independent" means, when used with respect to any specified Person, that
the Person (a) is in fact independent of the Issuer, any other obligor on the
Notes, the Transferor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Transferor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Transferor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01 hereof, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in this Indenture and that the signer is Independent within the meaning thereof.
"Issuer" or "Owner Trust" means Empire Funding Home Loan Owner Trust 1998-2
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Notes.
"Issuer Order" and "Issuer Request" mean a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"Majority Highest Priority Classes Noteholders" means on any date, Holders
of Highest Priority Classes Notes representing more than 50% of the Voting
Interests of the Highest Priority Classes Notes then Outstanding.
"Maturity Date" means, with respect to each Class of Notes, the applicable
maturity date set forth below:
Class Maturity Date
----- -------------
A-1 May 25, 2008
A-2 May 25, 2012
A-3 November 25, 2013
A-4 March 25, 2019
A-5 June 25, 2024
A-6 June 25, 2024
A-IO June 25, 2024
M-1 June 25, 2024
M-2 June 25, 2024
B-1 June 25, 2024
B-2 June 25, 2024
"Non-Priority Class Notes" means Notes which are not Highest Priority
Classes Notes.
"Note" means a Class A-1 Note, Class A-2 Note, Class A-3 Note, Class A-4
Note, Class A-5 Note, Class A-6 Note, Class A-IO Note, Class M-1 Note, Class M-2
Note, Class B-1 Note or Class B-2 Note, as applicable.
"Note Depository Agreement" means the agreement to be entered into among
the Issuer, the Administrator, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency, relating to the Book-Entry Notes.
"Note Interest Rate" means, with respect to any Class of Notes, the
applicable rate per annum specified below (computed on the basis of a 360-day
year assumed to consist of twelve 30-day months except that with respect to the
Class A-1 Notes, calculations of accrued interest shall be made on the basis of
a 360-day year and actual number of days elapsed in each Accrual Period):
Class A-1: Floating Rate (1) (2)
Class A-2: 6.28%(2)
Class A-3: 6.39%(2)
Class A-4: 6.53%(2)
Class A-5: 6.96%(2)
Class A-6 6.72%(2)
Class A-IO 5.09%(2)
Class M-1: 6.99%(2)
Class M-2: 7.43%(2)
Class B-1: 9.03%(2)
Class B-2: 9.21%(2)
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(1) Interest will accrue on the Class A-1 Notes during each Accrual Period at
a per annum interest rate equal to LIBOR for the related LIBOR
Determination Date plus 0.06%, subject to a maximum rate equal to 12.0%.
The Note Interest Rate applicable to the Class A-1 Notes for the initial
Accrual Period will be 5.70844% per annum.
(2) Commencing on the first day of the month in which the Clean-up Call Date
occurs, the Note Interest Rate shall be increased by 0.50% per annum.
"Note Owner" means, with respect to a Book-Entry Note, the Person that is
the beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 2.03 hereof.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer or the Administrator, under the circumstances described
in, and otherwise complying with, the applicable requirements of Section 11.01
hereof, and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer or the Administrator.
"Opinion of Counsel" means one or more written opinions of counsel who may,
except as otherwise expressly provided in this Indenture, be an employee of or
counsel to the Issuer and who shall be satisfactory to the Indenture Trustee,
and which opinion or opinions shall be addressed to the Indenture Trustee, as
Indenture Trustee, and shall comply with any applicable requirements of Section
11.01 hereof and shall be in form and substance satisfactory to the Indenture
Trustee.
"Outstanding" means, with respect to any Note and as of the date of
determination, any Note theretofore authenticated and delivered under this
Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has theretofore been deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision for
such notice satisfactory to the Indenture Trustee has been made);
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser; provided, however, that in determining
whether the Holders of the requisite Voting Interests of the Outstanding
Notes have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or under any Basic Document, Notes owned by
the Issuer, any other obligor upon the Notes, the Transferor or any
Affiliate of any of the foregoing Persons shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be owned in such manner shall be disregarded.
Notes owned in such manner that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Indenture Trustee that the pledgee has the right so to act with
respect to such Notes and that the pledgee is not the Issuer, any other
obligor upon the Notes, the Transferor or any Affiliate of any of the
foregoing Persons; and
(iv) Notes for which the related Maturity Date has occurred.
"Outstanding Amount" means the aggregate principal amount of all Notes, or
Class of Notes, as applicable, Outstanding at the date of determination. The
Class A-IO Notes shall not have an Outstanding Amount.
"Owner Trust Agreement" means the Trust Agreement dated as of June 1, 1998,
among PaineWebber Mortgage Acceptance Corporation IV, as Depositor, the Company,
Wilmington Trust Company, as Owner Trustee and U.S. Bank National Association,
as Paying Agent.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any successor
Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
hereof and is authorized by the Issuer to make payments to and payments from the
Note Payment Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Payment Date" means the 25th day of any month or if such 25th day is not a
Business Day, the first Business Day immediately following such day, commencing
in July 1998.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, limited liability company, limited
liability partnership or government or any agency or political subdivision
thereof.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.04 hereof in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Rating Agency" means either or all of (i) S&P, (ii) Fitch or (iii) DCR. If
no such organization or successor thereto is any longer in existence, "Rating
Agency" shall be a nationally recognized statistical rating organization or
other comparable Person rating the Notes.
"Rating Agency Condition" means, with respect to any applicable action,
that each Rating Agency shall have been given 10 days' prior notice thereof (or
such shorter period as is acceptable to each Rating Agency) and that each of the
Rating Agencies shall have notified the Depositor, the Servicer and the Issuer
in writing that such action will not result in a reduction or withdrawal of the
then current rating of the Notes.
"Record Date" means, as to each Payment Date, the last Business Day of the
month immediately preceding the month in which such Payment Date occurs.
"Redemption Date" means in the case of a redemption of the Notes pursuant
to Section 10.01 hereof, the Payment Date specified by the Servicer or the
Issuer pursuant to such Section 10.01.
"Registered Holder" means the Person in the name of which a Note is
registered on the Note Register on the applicable Record Date.
"Residual Interest Certificate" has the meaning assigned to such term in
Section 1.1 of the Owner Trust Agreement.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"S&P" means Standard and Poor's Ratings Services or any successor thereto.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
as of June 1, 1998, among the Issuer, PaineWebber Mortgage Acceptance
Corporation IV, as Depositor, and Empire Funding Corp., as Transferor and
Servicer, and U.S. Bank National Association, as Indenture Trustee and Grantor
Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Servicer" shall mean Empire Funding Corp., in its capacity as servicer
under the Sale and Servicing Agreement, and any Successor Servicer thereunder.
"State" means any one of the States of the United States of America or the
District of Columbia.
"Transferor" means Empire Funding Corp., an Oklahoma corporation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code as in effect in the relevant jurisdiction, as amended from time to time.
(b) Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein have the
respective meanings set forth in the Sale and Servicing Agreement for all
purposes of this Indenture.
"Voting Interests" means (A) with respect to any Class of Notes, other than
the Class A-IO Notes, the percentage equal to the product of (i) 99% and (ii) a
fraction, the numerator of which is equal to the Class Principal Balance of such
Class of Notes and the denominator of which is equal to the aggregate Class
Principal Balances of all Classes of Notes Outstanding and (B) with respect to
the Class A-IO Notes, 1%.
Section 1.02. Incorporation by Reference of Trust Indenture Act. (a)
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
(b) All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by rule of the Securities
and Exchange Commission have the respective meanings assigned to them by such
definitions.
Section 1.03. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented (as provided in such agreements) and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
THE NOTES
Section 2.01. Form. The Notes shall be designated as the "Empire Funding
Home Loan Owner Trust 1998-2 Asset Backed Notes, Series 1998-2". Each Class of
Notes shall be in substantially the form set forth in Exhibit A hereto, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution thereof. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes are set forth in Exhibit A hereto. The terms of each Class of Notes are
part of the terms of this Indenture.
Section 2.02. Execution, Authentication, Delivery and Dating. The Notes
shall be executed on behalf of the Issuer by an Authorized Officer of the Owner
Trustee or the Administrator. The signature of any such Authorized Officer on
the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Owner Trustee or the Administrator shall
bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Notes or did not hold such offices at the date of such Notes.
Subject to the satisfaction of the conditions set forth in Section 2.08
hereof, the Indenture Trustee shall upon Issuer Order authenticate and deliver
the Classes of Notes for original issue in the following principal amounts or
Class Notional Balances: Class A-1, $57,666,000; Class A-2, $56,904,000; Class
A-3, $23,089,000; Class A-4, $36,212,000; Class A-5, $22,516,500; Class A-6,
$19,500,000; Class A-IO, $30,300,000 (notional); Class M-1, $30,300,000; Class
M-2, $21,967,500; Class B-1, $25,755,000; Class B-2, $9,090,000. The aggregate
principal or notional amounts of such Classes of Notes outstanding at any time
may not exceed such respective amounts.
The Notes that are authenticated and delivered by the Indenture Trustee to
or upon the order of the Issuer on the Closing Date shall be dated May 28, 1998.
All other Notes that are authenticated after the Closing Date for any other
purpose under the Indenture shall be dated the date of their authentication.
Each Class of Notes shall be issuable as registered Notes in the minimum
denomination of $25,000 initial principal amount (or, in the case of the Class
A-IO Notes, $1,000,000 initial notional amount) and integral multiples of $1,000
in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
Section 2.03. Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Indenture Trustee prompt written notice
of the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Register, and the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Holders of the Notes and the
principal amounts or notional amounts, as applicable, and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02 hereof, the
Issuer shall execute, and the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes of the same Class in
any authorized denominations, of a like aggregate principal amount or notional
amount, as applicable.
At the option of the Holder, Notes may be exchanged for other Notes of the
same Class in any authorized denominations, of a like aggregate principal amount
or notional amount, as the case may be, upon surrender of the Notes to be
exchanged at such office or agency. Whenever any Notes are so surrendered for
exchange, the Issuer shall execute, and the Indenture Trustee shall authenticate
and the Noteholder shall obtain from the Indenture Trustee, the Notes which the
Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agents' Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 9.06 hereof not involving any transfer.
The preceding provisions of this Section 2.03 notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may reasonably be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
bona fide purchaser, an Authorized Officer of the Owner Trustee or the
Administrator on behalf of the Issuer shall execute, and upon its request the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Class; provided, however, that if any such destroyed, lost or stolen Note,
but not a mutilated Note, shall have become or within seven days shall be due
and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a bona fide purchaser of
the original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
which it was delivered or any Person taking such replacement Note from such
Person to which such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section 2.04, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.04 in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.04 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.05. Persons Deemed Note Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in the name of
which any Note is registered (as of the day of determination) as the Note Owner
for the purpose of receiving payments of principal of and interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.06. Payment of Principal and/or Interest; Defaulted Interest. (a)
Each Class of Notes shall accrue interest at the related Note Interest Rate, and
such interest shall be payable on each Payment Date as specified in Exhibit A
hereto, subject to Section 3.01 hereof. With respect to the Class A-1 Notes and
each Payment Date other than the first Payment Date, the Indenture Trustee shall
determine LIBOR for each applicable Accrual Period on the second LIBOR Business
Day prior thereto. Any installment of interest or principal, if any, payable on
any Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in the name of which such
Note (or one or more Predecessor Notes) is registered on the Record Date by
check mailed first-class postage prepaid to such Person's address as it appears
on the Note Register on such Record Date, except that, unless Definitive Notes
have been issued pursuant to Section 2.12 hereof, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the applicable Maturity Date for such Class
of Notes (and except for the Termination Price for any Note called for
redemption pursuant to Section 10.01) hereof, which shall be payable as provided
in Section 2.06(b) below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03 hereof.
(b) The principal of each Note other than the Class A-IO Notes shall be
payable in installments on each Payment Date as provided in the forms of the
Notes set forth in Exhibit A hereto. Notwithstanding the foregoing, the entire
unpaid principal amount of the Notes together with the amount of any Loss
Reimbursement Deficiency in respect thereof of a Class of Notes other than the
Class A-IO Notes shall be due and payable, if not previously paid, on the
earlier of (i) the applicable Maturity Date of such Class, (ii) the Redemption
Date or (iii) the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee or the Majority Highest Priority Classes
Noteholders shall have declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 hereof. The Class A-IO Notes are "interest
only" and shall receive no payments in respect of principal.
All principal payments on each Class of Notes other than the Class A-IO
Notes shall be made pro rata to the Noteholders of such Class entitled thereto.
The Indenture Trustee shall notify the Person in the name of which a Note is
registered at the close of business on the Record Date preceding the Payment
Date on which the Issuer expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02 hereof.
Section 2.07. Cancellation. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall
promptly be cancelled by the Indenture Trustee. The Issuer may at any time
deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall promptly be cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.07, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
Section 2.08. Conditions Precedent to the Authentication of the Notes. The
Notes may be authenticated by the Indenture Trustee, upon Issuer Request and
upon receipt by the Indenture Trustee of the following:
(a) An Issuer Order authorizing the execution and authentication of such
Notes by the Issuer.
(b) All of the items of Collateral which shall be delivered to the
Indenture Trustee or its designee.
(c) An executed counterpart of the Owner Trust Agreement.
(d) An Opinion of Counsel addressed to the Indenture Trustee to the effect
that:
(i) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with;
(ii) the Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Owner Trust Agreement;
(iii) the Issuer has been duly formed, is validly existing as a
business trust under the laws of the State of Delaware, 12 Del. C. Section
3801 et seq., and has power, authority and legal right to execute and
deliver this Indenture, the Administration Agreement and the Sale and
Servicing Agreement;
(iv) assuming due authorization, execution and delivery hereof
by the Indenture Trustee, the Indenture is the valid, legal and binding
obligation of the Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent or preferential conveyance and other similar laws
of general application affecting the rights of creditors generally and to
general principles of equity (regardless of whether such enforcement is
considered in a Proceeding in equity or at law);
(v) the Notes, when executed and authenticated as provided
herein and delivered against payment therefor, will be the valid, legal
and binding obligations of the Issuer pursuant to the terms of this
Indenture, entitled to the benefits of this Indenture, and will be
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent or
preferential conveyance and other similar laws of general application
affecting the rights of creditors generally and to general principles of
equity (regardless of whether such enforcement is considered in a
Proceeding in equity or at law);
(vi) the Owner Trust Agreement authorizes the Issuer to Grant
the Collateral to the Indenture Trustee as security for the Notes;
(vii) this Indenture has been duly qualified under the Trust
Indenture Act;
(viii) no authorization, approval or consent of any governmental
body having jurisdiction in the premises which has not been obtained by
the Issuer is required to be obtained by the Issuer for the valid issuance
and delivery of the Notes, except that no opinion need be expressed with
respect to any such authorizations, approvals or consents as may be
required under any state securities or "blue sky" laws; and
(ix) any other matters as the Indenture Trustee may reasonably
request.
(e) An Officer's Certificate complying with the requirements of Section
11.01 hereof and stating that:
(i) the Issuer is not in Default under this Indenture and the
issuance of the Notes applied for will not result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, the
Owner Trust Agreement, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Issuer is a party or by which it is
bound, or any order of any court or administrative agency entered in any
Proceeding to which the Issuer is a party or by which it may be bound or
to which it may be subject, and that all conditions precedent provided in
this Indenture relating to the authentication and delivery of the Notes
applied for have been complied with;
(ii) the Issuer is the owner of the Grantor Trust Certificate,
has not assigned any interest or participation in the Grantor Trust
Certificate (or, if any such interest or participation has been assigned,
it has been released) and has the right to Grant the Grantor Trust
Certificate to the Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all of its
right, title and interest in and to the Collateral, and has delivered or
caused the same to be delivered to the Indenture Trustee;
(iv) attached thereto are true and correct copies of letters
signed by the Rating Agencies confirming that the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5 and Class A-6 Notes have been rated "AAA"
by S&P, Fitch and DCR, letters signed by the Rating Agencies confirming
that the Class A-IO Notes have been rated "AAAr" by S&P, and "AAA" by
Fitch and DCR and letters signed by the Rating Agencies confirming that
the Class M-1 Notes, the Class M-2 Notes, the Class B-1 Notes and the
Class B-2 Notes have been rated "AA", "A", "BBB" and "BB", respectively by
S&P, Fitch and DCR; and
(v) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with; and
(f) A fair value certificate from the Servicer, as agent of the Trust,
pursuant to Section 2(a)(xii) of the Administration Agreement.
Section 2.09. Release of Collateral. Except as otherwise provided in
Section 11.01 hereof and the terms of the Basic Documents, the Indenture Trustee
shall release property from the lien of this Indenture only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(l) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
Section 2.10. Book-Entry Notes. The Notes, when authorized by an Issuer
Order, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by or on behalf of the Issuer. The Book-Entry Notes shall be
registered initially on the Note Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Note Owner will receive a definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12 hereof. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12 hereof:
(i) the provisions of this Section 2.10 shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Notes
and the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section 2.10
conflict with any other provisions of this Indenture, the provisions of
this Section 2.10 shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement.
Unless and until Definitive Notes are issued pursuant to Section 2.12
hereof, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing
a specified percentage of the Voting Interests of the Outstanding Notes,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and has delivered such instructions to the Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12 hereof, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency and shall have no obligation to such Note Owners.
Section 2.12. Definitive Notes. (a) If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Book-Entry
Notes and the Administrator is unable to locate a qualified successor, (ii) the
Administrator at its option advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default, Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the Voting
Interests of the Outstanding Notes advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of such Note Owners, then the Clearing Agency shall notify
all Note Owners and the Indenture Trustee of the occurrence of such event and of
the availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and each of them
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall
recognize the Holders of the Definitive Notes as Noteholders.
(b) Notwithstanding the foregoing, (i) Holders of the Class B-2 Notes held
as Book-Entry Notes, may transfer such Class B-2 Notes to transferees who will
hold such Class B-2 Notes as Definitive Notes and (ii) Holders of the Class B-2
Notes held as Definitive Notes, may transfer the Class B-2 Notes to transferees
who will hold such Class B-2 Notes as Book-Entry Notes, if the conditions set
forth in this Section 2.12 are satisfied.
Any and all transfers from a Holder of a Class B-2 Book-Entry Note to a
transferee wishing to take delivery in the form of a Definitive Note will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Note described in the legend set forth on the face
of the Class B-2 Note substantially in the form of Exhibit C as attached hereto
(the "Legend"), and such transferee agrees that it will transfer such a Class
B-2 Note only as provided therein and herein. No such transfer shall be made and
the Indenture Trustee shall not register any such transfer unless such transfer
is made in accordance with Section 2.12(b) and Section 2.14.
Upon acceptance for exchange or transfer of a beneficial interest in a
Class B-2 Book-Entry Note for a Definitive Note as provided herein, the
Indenture Trustee shall endorse on (or cause the endorsement of) the schedule
affixed to the related Book-Entry Note (or on a continuation of such schedule
affixed to the such Book-Entry Note and made a part thereof) an appropriate
notation evidencing the date of such exchange or transfer and a decrease in the
Class Principal Balance, in the case of the Class B-2 Notes, of such Book-Entry
Note equal to the Class Principal Balance of such Definitive Note issued in
exchange therefor or upon transfer thereof. Unless determined otherwise by the
Indenture Trustee in accordance with applicable law, a Definitive Note issued
upon transfer of or exchange for a beneficial interest in a Class B-2 Book-Entry
Note shall bear the Legend.
If a Holder of a Class B-2 Definitive Note wishes at any time to transfer
such Definitive Note to a Person who wishes to take delivery thereof in the form
of a beneficial interest in the Book-Entry Note, such transfer may be effected
only in accordance with the applicable procedures of the Depository Institution,
and Section 2.12(b) and Section 2.14. Upon receipt by the Indenture Trustee at
the Corporate Trust Office of (1) the Class B-2 Definitive Note to be
transferred with an assignment and transfer, (2) written instructions given in
accordance with the applicable procedures from a participant directing the
Indenture Trustee to credit or cause to be credited to another specified
participant's account a beneficial interest in the Book-Entry Note, in an amount
equal to the Class Principal Balance of the Class B-2 Notes of such Definitive
Note to be so transferred, (3) a written order given in accordance with the
applicable procedures containing information regarding the account of the
participant to be credited with such beneficial interest, and (4) transfer
documentation received for a "Qualified Institutional Buyer" pursuant to Section
2.14, the Indenture Trustee shall cancel such Definitive Note, execute and
deliver a new Definitive Note for the Class Principal Balance of the Class B-2
Notes of the Definitive Note not so transferred, registered in the name of the
Holder or the Holder's transferee (as instructed by the Holder), and the
Indenture Trustee shall instruct the Depository Institution to increase the
Class Principal Balance of the Book-Entry Note, by the Class Principal Balance
of the Definitive Note to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
corresponding Class Principal Balance of the Book-Entry Note.
Under no circumstances may an institutional "accredited investor" within
Regulation D of the Securities Act take delivery in the form of a beneficial
interest in a Class B-2 Book-Entry Note if such purchaser is not a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act.
An exchange of a beneficial interest in a Class B-2 Book-Entry Note for a
Definitive Note or Notes, an exchange of a Class B-2 Definitive Note or Notes
for a beneficial interest in the Book-Entry Note and exchange of a Class B-2
Definitive Note or Notes for another Definitive Note or Notes (in each case,
whether or not such exchange is made in anticipation of subsequent transfer, and
in the case of the Book-Entry Note, so long as the Book-Entry Note remains
outstanding and is held by or on behalf of the Depository Institution), may be
made only in accordance with Section 2.12(b) and Section 2.14 and in accordance
with the rules of the Depository Institution.
Section 2.13. Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that for all purposes,
including federal, state and local income, single business and franchise tax
purposes, the Notes will qualify as indebtedness of the Issuer secured by the
Collateral. The Issuer, by entering into this Indenture, and each Noteholder, by
its acceptance of a Note (and each Note Owner by its acceptance of an interest
in the applicable Book-Entry Note), agree to treat the Notes for all purposes,
including federal, state and local income, single business and franchise tax
purposes, as indebtedness of the Issuer.
SECTION 2.14. Limitations on Transfer of the Class B-2 Notes. The Class B-2
Notes have not been and will not be registered under the Securities Act and will
not be listed on any exchange. No transfer of a Class B-2 Definitive Note or
exchange of a Class B-2 Definitive Note for a Class B-2 Book-Entry Note (or vice
versa) shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under the
Securities Act and such state securities laws. In the event that a transfer of
Class B-2 Note in Definitive Note form is to be made in reliance upon an
exemption from the Securities Act and state securities laws, in order to assure
compliance with the Securities Act and such laws, the prospective transferee
shall (A) in the event that the transfer is made in reliance upon Rule 144A
under the Securities Act, the Indenture Trustee shall require that the
transferor deliver a certification substantially in the form of Exhibit B-1
hereto, or (B) in the event that the transfer is made to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a "qualified institutional
buyer," the Indenture Trustee shall require that the transferee deliver a
certification substantially in the form of Exhibit B-2 hereto. In the event of a
transfer of a Class B-2 Note pursuant to clause (A) or (B) in the immediately
preceding sentence, the Indenture Trustee shall require that the transferee
deliver a certification substantially in the form of Exhibit B-3 hereto.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and/or Interest. The Issuer will duly
and punctually pay (or will cause to be paid duly and punctually) the principal
of and interest on the Notes in accordance with the terms of the Notes and this
Indenture. Without limiting the foregoing, subject to and in accordance with
Section 8.02(c) hereof, the Issuer will cause to be distributed all amounts on
deposit in the Note Payment Account on each Payment Date deposited therein
pursuant to the Sale and Servicing Agreement (i) for the benefit of the Class
A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2
Notes, to the Class A-2 Noteholders, (iii) for the benefit of the Class A-3
Notes, to the Class A-3 Noteholders, (iv) for the benefit of the Class A-4
Notes, to the Class A-4 Noteholders, (v) for the benefit of the Class A-5 Notes,
to the Class A-5 Noteholders, (vi) for the benefit of the Class A-6 Notes, to
the Class A-6 Noteholders, (vii) for the benefit of the Class A-IO Notes, to the
Class A-IO Noteholders, (viii) for the benefit of the Class M-1 Notes, to the
Class M-1 Noteholders, (ix) for the benefit of the Class M-2 Notes, to the Class
M-2 Noteholders, (x) for the benefit of the Class B-1 Notes, to the Class B-1
Noteholders and (xi) for the benefit of the Class B-2 Notes, to the Class B-2
Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture. The Notes shall be non-recourse obligations of the Issuer and shall
be limited in right of payment to amounts available from the Collateral, as
provided in this Indenture. The Issuer shall not otherwise be liable for
payments on the Notes. If any other provision of this Indenture shall be deemed
to conflict with the provisions of this Section 3.01, the provisions of this
Section 3.01 shall control.
Section 3.02. Maintenance of Office or Agency. The Issuer will or will
cause the Administrator to maintain in the Borough of Manhattan in The City of
New York an office or agency where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Administrator to serve as its agent for the foregoing
purposes and to serve as Paying Agent with respect to the Notes and the
Certificates. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
Section 3.03. Money for Payments to Be Held in Trust. As provided in
Section 8.02(a) and (b) hereof, all payments of amounts due and payable with
respect to any Notes that are to be made from amounts withdrawn from the Note
Payment Account pursuant to Section 8.02(c) hereof shall be made on behalf of
the Issuer by the Indenture Trustee or by the Paying Agent, and no amounts so
withdrawn from the Note Payment Account for payments of Notes shall be paid over
to the Issuer except as provided in this Section 3.03.
On or before the Business Day preceding each Payment Date and the
Redemption Date, the Paying Agent shall deposit or cause to be deposited in the
Note Payment Account an aggregate sum sufficient to pay the amounts due on such
Payment Date or the Redemption Date under the Notes, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless the Paying
Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of
its action or failure so to act.
Any Paying Agent shall be appointed by Issuer Order with written notice
thereof to the Indenture Trustee. Any Paying Agent appointed by the Issuer shall
be a Person which would be eligible to be Indenture Trustee hereunder as
provided in Section 6.11 hereof. The Issuer shall not appoint any Paying Agent
(other than the Indenture Trustee) which is not, at the time of such
appointment, a Depository Institution.
The Issuer will cause each Paying Agent other than the Administrator to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect to
the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; provided, however, that
with respect to withholding and reporting requirements applicable to
original issue discount (if any) on the Notes, the Issuer shall have first
provided the calculations pertaining thereto to the Indenture Trustee.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or abandoned
property, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two years after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (but only to the extent of the amounts so
paid to the Issuer), and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to be
published, once in a newspaper of general circulation in The City of New York
customarily published in the English language on each Business Day, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense and direction of the Issuer,
any other reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to Holders whose Notes have been
called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Holder).
Section 3.04. Existence. (a) Subject to subparagraph (b) of this Section
3.04, the Issuer will keep in full effect its existence, rights and franchises
as a business trust under the laws of the State of Delaware (unless it becomes,
or any successor Issuer hereunder is or becomes, organized under the laws of any
other State or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes and the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section 10.2
of the Trust Agreement shall be the successor Owner Trustee under this Indenture
without the execution or filing of any paper, instrument or further act to be
done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the Owner
Trustee, the Person succeeding to the Owner Trustee under the Trust Agreement
may exercise every right and power of the Owner Trustee under this Indenture
with the same effect as if such Person had been named as the Owner Trustee
herein.
Section 3.05. Protection of Collateral. The Issuer will from time to time
execute and deliver all such reasonable supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) provide further assurance with respect to the Grant of all or
any portion of the Collateral;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iv) enforce any rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the rights of
the Indenture Trustee and the Noteholders in such Collateral against the
claims of all persons and parties.
The Issuer hereby designates the Administrator, its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.05.
Section 3.06. Annual Opinions as to Collateral. On or before July 15th in
each calendar year, beginning in 1999, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Indenture and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain such lien and security interest. Such
Opinion of Counsel shall also describe the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until July 15th of
the following calendar year.
Section 3.07. Performance of Obligations. (a) The Issuer will not take any
action and will use its best efforts not to permit any action to be taken by
others that would release any Person from any of such Person's material
covenants or obligations under any instrument or agreement included in the
Collateral or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in this Indenture,
the Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with or otherwise obtain the assistance of
other Persons (including, without limitation, the Administrator under the
Administration Agreement) to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to
be action taken by the Issuer. Initially, the Issuer has contracted with the
Administrator to assist the Issuer in performing its duties under this
Indenture. The Administrator must at all times be the same Person as the
Indenture Trustee.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, in the Basic Documents and in the
instruments and agreements included in the Collateral, including but not limited
to filing or causing to be filed all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture and the Sale and
Servicing Agreement. Except as otherwise expressly provided therein, the Issuer
shall not waive, amend, modify, supplement or terminate any Basic Document or
any provision thereof without the consent of the Indenture Trustee and the
Holders of at least a majority of the Voting Interests of the Outstanding Notes.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Default under the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee and the Rating Agencies thereof, and shall specify in such
notice the action, if any, the Issuer is taking with respect to such default. If
such an Event of Default shall arise from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement with
respect to the Home Loans, the Issuer shall take all reasonable steps available
to it to remedy such failure.
(e) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees (i) that it will not, without the prior
written consent of the Indenture Trustee, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to the
extent otherwise provided in the Sale and Servicing Agreement) or the Basic
Documents, or waive timely performance or observance by the Servicer or the
Depositor under the Sale and Servicing Agreement; and (ii) that any such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, payments that are required to be made for the
benefit of the Noteholders or (B) reduce the aforesaid percentage of the Notes
that is required to consent to any such amendment, without the consent of the
Holders the Voting Interests of all Outstanding Notes. If any such amendment,
modification, supplement or waiver shall so be consented to by the Indenture
Trustee, the Issuer agrees, promptly following a request by the Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture or the Sale
and Servicing Agreement, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included in
the Collateral, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Noteholder by reason of the payment of the
taxes levied or assessed upon any part of the Collateral;
(iii) engage in any business or activity other than as permitted
by the Owner Trust Agreement or other than in connection with, or relating
to, the issuance of Notes pursuant to this Indenture, or amend the Owner
Trust Agreement as in effect on the Closing Date other than in accordance
with Section 11.1 thereof;
(iv) issue debt obligations under any other indenture;
(v) incur or assume any indebtedness or guaranty any indebtedness
of any Person, except for such indebtedness as may be incurred by the
Issuer in connection with the issuance of the Notes pursuant to this
Indenture;
(vi) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(vii) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenants or obligations with respect to the Notes
under this Indenture except as may expressly be permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be created on
or extend to or otherwise arise upon or burden the Collateral or any part
thereof or any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by operation of law, in
each case on any of the Mortgaged Properties and arising solely as a result
of an action or omission of the related Obligors) or (C) permit the lien of
this Indenture not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest in the
Collateral;
(viii) remove the Administrator without cause unless the Rating
Agency Condition shall have been satisfied in connection with such removal;
or
(ix) take any other action or fail to take any action which may
cause the Issuer to be taxable as (a) an association pursuant to Section
7701 of the Code and the corresponding regulations or (b) as a taxable
mortgage pool pursuant to Section 7701(i) of the Code and the corresponding
regulations.
Section 3.09. Annual Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing in the fiscal year 1999), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and
of its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a default
in its compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.
Section 3.10. Covenants of the Issuer. All covenants of the Issuer in this
Indenture are covenants of the Issuer and are not covenants of the Owner
Trustee. The Owner Trustee is, and any successor Owner Trustee under the Trust
Agreement will be, entering into this Indenture solely as Owner Trustee under
the Trust Agreement and not in its respective individual capacity, and in no
case whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuer hereunder, as to all of
which the parties hereto agree to look solely to the property of the Issuer.
Section 3.11. Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any payment (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, to
the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, (x) payments to the
Servicer, the Indenture Trustee, the Grantor Trustee, the Owner Trustee, the
Noteholders and the holders of the Residual Interest Certificate as contemplated
by, and to the extent funds are available for such purpose under, the Sale and
Servicing Agreement, the Grantor Trust Agreement or the Owner Trust Agreement
and (y) payments to the Indenture Trustee pursuant to Section 1(a)(ii) of the
Administration Agreement. The Issuer will not, directly or indirectly, make or
cause to be made payments to or distributions from the Collection Account in
respect of the Grantor Trust Certificate except in accordance with this
Indenture and the Basic Documents.
Section 3.12. Treatment of Notes as Debt for Tax Purposes. The Issuer
shall, and shall cause the Administrator to, treat the Notes as indebtedness for
all purposes.
Section 3.13. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer or the Transferor of
its obligations under the Sale and Servicing Agreement and each default on the
part of the Transferor of its obligations under the Home Loan Purchase
Agreement.
Section 3.14. Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Notes (except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08
and 3.10 hereof, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 hereof and the obligations of the Indenture Trustee under Section 4.02
hereof) and (vi) the rights of Noteholders as beneficiaries hereof with respect
to the property so deposited with the Indenture Trustee payable to all or any of
them), and the Indenture Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when all of the following have
occurred:
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i) Notes
that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.04 hereof and (ii) Notes for the payment of
which money has theretofore been deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged
from such trust, as provided in Section 3.03 hereof) shall have been
delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
a. shall have become due and payable, or
b. will become due and payable within one year following the Maturity
Date applicable to the Class B-2 Notes, or
c. are to be called for redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and at the expense,
of the Issuer,
d. and the Issuer, in the case of clause a., b. or c. above, has
irrevocably deposited or caused irrevocably to be deposited with the
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to
the date such amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Indenture Trustee for
cancellation when due to the applicable Maturity Date of such Class of
Notes or the Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.01 hereof), as the case may be; and
(B) the latest of (a) 18 months after payment in full of all outstanding
obligations under the Notes, (b) the payment in full of all unpaid Trust Fees
and Expenses and (c) the date on which the Issuer has paid or caused to be paid
all other sums payable hereunder by the Issuer; and
(C) the Issuer shall have delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.01(a) hereof and, subject
to Section 11.02 hereof, each stating that all conditions precedent herein
provided for, relating to the satisfaction and discharge of this Indenture with
respect to the Notes, have been complied with.
Section 4.02. Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Sections 3.03 and 4.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal
and/or interest; but such moneys need not be segregated from other funds except
to the extent required herein or in the Sale and Servicing Agreement or required
by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.03 hereof and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
REMEDIES
Section 5.01. Events of Default. (a) "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) subject to Section 5.01(b) and notwithstanding that there may
be insufficient sums in the Note Payment Account for payment thereof on the
related Payment Date, default in the payment of any interest on any Note
when the same becomes due and payable, and continuance of such default for
a period of five (5) days; or
(ii) subject to Section 5.01(b) and notwithstanding that there
may be insufficient sums in the Note Payment Account for payment thereof on
the related Payment Date, default in the payment of the principal of or any
installment of the principal of any Note (i) when the same becomes due and
payable or (ii) on the Maturity Date; or
(iii) the existence of an unpaid Loss Reimbursement Deficiency in
respect of any Highest Priority Classes Notes; or
(iv) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere
in this Section specifically dealt with), or any representation or warranty
of the Issuer made in this Indenture, the Sale and Servicing Agreement or
in any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material respect
as of the time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in respect of
which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall
have been given, by registered or certified mail, to the Issuer by the
Indenture Trustee, or to the Issuer and the Indenture Trustee by the
Holders of at least 25% of the Voting Interests of the Outstanding Notes, a
written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a
notice of Default hereunder; or
(v) default in the observance or performance of any covenant or
agreement of the Company made in the Owner Trust Agreement or Grantor Trust
Agreement or any representation or warranty of the Company made in the
Owner Trust Agreement or Grantor Trust Agreement, proving to have been
incorrect in any material respect as of the time when the same shall have
been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured,
for a period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee, or to the Issuer
and the Indenture Trustee by the Holders of at least 25% of the Voting
Interests of the Outstanding Notes, a written notice specifying such
Default or incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a notice of Default hereunder; or
(vi) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Collateral in an involuntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part
of the Collateral, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(vii) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Collateral, or the making
by the Issuer of any general assignment for the benefit of creditors, or
the failure by the Issuer generally to pay its debts as such debts become
due, or the taking of any action by the Issuer in furtherance of any of the
foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clauses (iv) and (v) above, the status of such event
and what action the Issuer is taking or proposes to take with respect thereto.
(b) Neither (i) the failure to pay the full amount of interest payable
pursuant to Section 5.01(d) of the Sale and Servicing Agreement to Holders of
any Non-Priority Class Notes, nor (ii) an application of Allocable Loss Amounts
pursuant to Section 5.04 of the Sale and Servicing Agreement to any Non-Priority
Class Notes, shall constitute an Event of Default under Section 5.01(a)(i).
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee, at the direction or upon the prior written consent of the
Majority Highest Priority Classes Noteholders, may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon, and all accrued and unpaid interest on the Class A-IO Notes, through
the date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the moneys due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Majority Highest Priority Classes Noteholders, by written notice to the Issuer
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
1. all payments of principal of and/or interest on all Notes and
all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
2. all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel;
and
(b) all Events of Default, other than the nonpayment of the principal of
the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12 hereof. No such rescission shall affect any
subsequent default or impair any right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee, pay to the Indenture Trustee, for the benefit of the Holders of the
Notes, the whole amount then due and payable on such Notes for principal and/or
interest, with interest upon the overdue principal and, to the extent payment at
such rate of interest shall be legally enforceable, upon overdue installments of
interest at the rate borne by the Notes and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee may, and shall at the direction of the majority of
the Holders of the Notes, institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon such
Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee
may, in its discretion, and shall at the direction of the majority of the
Holders of the Notes, as more particularly provided in Section 5.04 hereof,
proceed to protect and enforce its rights and the rights of the Noteholders by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and/or interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee, each predecessor
Indenture Trustee, and its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the Noteholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders and the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property; and any
trustee, receiver, liquidator, custodian or other similar official in any
such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred and all advances
made by the Indenture Trustee and each predecessor Indenture Trustee except
as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents, attorneys and counsel, shall be
for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee may, and at the direction of a majority of the Holders of the
Notes shall, do one or more of the following (subject to Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee or the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein in a commercially reasonable manner, at one or more public
or private sales called and conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral following an Event of Default, unless (A) the
Holders of 100% of the Voting Interests of the Outstanding Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and/or interest or (C) the Indenture
Trustee determines that the Collateral will not continue to provide
sufficient funds for the payment of principal of and interest on the Notes
as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Holders of
66-2/3% of the Voting Interests of the Outstanding Notes. In determining
such sufficiency or insufficiency with respect to clause (B) and (C) of
this subsection (a)(iv), the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed action
and as to the sufficiency of the Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for the Indenture Trustee Fee
then due and any costs or expenses incurred by it in connection with the
enforcement of the remedies provided for in this Article V and to the Owner
Trustee for the Owner Trustee Fee then due and to the Grantor Trustee for
the Grantor Trustee Fee then due;
SECOND: to the Servicer for the Servicing Fee then due and
unpaid;
THIRD: to the Custodian for the Custodian Fee then due and
unpaid;
FOURTH: to the Servicer for any amounts then due and payable as
the Servicing Advance Reimbursement Amount under the Sale and Servicing
Agreement;
FIFTH: to the Noteholders for amounts due and unpaid on the Notes
for interest, pro rata according to the amounts due and payable on the
Notes for interest, according to the amounts due and payable and in the
order and priorities set forth in Sections 5.01(d) the Sale and Servicing
Agreement, until the Class Principal Balance of each such Class is reduced
to zero;
SIXTH: to the applicable Noteholders for amounts due and unpaid
on the Notes (other than the Class A-IO Notes) for principal, pro rata
among the Holders of each such Class of Notes, according to the amounts due
and payable and in the order and priorities set forth in Sections 5.01(d)
and (e) of the Sale and Servicing Agreement, until the Class Principal
Balance of each such Class is reduced to zero;
SEVENTH: to the applicable Noteholders, for any amounts to be
distributed on account of interest in respect of the Class A-IO Notes that
would have been payable on the Class Notional Balance thereof but for the
reduction, if any, of such Class Notional Balance prior to August 25, 2000,
as set forth in Section 5.01(e) of the Sale and Servicing Agreement ; and
EIGHTH to the Owner Trustee, for any amounts to be distributed
pro rata to the holders of the Residual Interest Certificate pursuant to
the Owner Trust Agreement.
The Indenture Trustee may fix a record date and payment date for any
payment to be made to the Noteholders pursuant to this Section. At least 15 days
before such record date, the Indenture Trustee shall mail to each Noteholder and
the Issuer a notice that states the record date, the payment date and the amount
to be paid.
Section 5.05. Optional Preservation of the Collateral. If the Notes have
been declared to be due and payable under Section 5.02 hereof following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Collateral. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the
Collateral. In determining whether to maintain possession of the Collateral, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Voting Interests of
the Outstanding Highest Priority Classes Notes have made written request to
the Indenture Trustee to institute such Proceeding in respect of such Event
of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 30 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 30-day period by the Majority
Priority Highest Classes Noteholders.
It is understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a Majority Priority Highest Classes Noteholders, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Noteholders to Receive Principal
and/or Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the applicable Maturity Date thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.11. Control by Noteholders. The Majority Priority Highest Classes
Notes shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Indenture Trustee with respect to
the Notes or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) subject to the express terms of Section 5.04 hereof, any
direction to the Indenture Trustee to sell or liquidate the Collateral
shall be by Holders of Notes representing not less than 100% of the Voting
Interests of all Classes of Notes Outstanding;
(c) if the conditions set forth in Section 5.05 hereof have been
satisfied and the Indenture Trustee elects to retain the Collateral
pursuant to such Section, then any direction to the Indenture Trustee by
Holders of Notes representing less than 100% of the Voting Interests of all
Classes of Notes Outstanding to sell or liquidate the Collateral shall be
of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in this Section
5.11, subject to Section 6.01 hereof, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Section 5.12. Waiver of Past Defaults. The Majority Priority Highest
Classes Notes may waive any past Default or Event of Default and its
consequences, except a Default (a) in the payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof that cannot
be modified or amended without the consent of the Holder of each Note. In the
case of any such waiver, the Issuer, the Indenture Trustee and the Holders of
the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the Voting
Interests of the Outstanding Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 5.15. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at
the Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Transferor and the Servicer, as applicable, of each of their obligations
to the Issuer and the Grantor Trustee under or in connection with the Sale and
Servicing Agreement, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer, as Grantor Trust Holder, under or
in connection with the Sale and Servicing Agreement and the Grantor Trust
Agreement to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Transferor
or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Transferor or the
Servicer of each of their obligations under the Sale and Servicing Agreement and
the Grantor Trust Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing or by
telephone, confirmed in writing promptly thereafter) of the Holders of 66-2/3%
of the Highest Priority Classes Notes Outstanding shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer, as Grantor Trust Holder,
against the Transferor or the Servicer under or in connection with the Sale and
Servicing Agreement and the Grantor Trust Agreement, including the right or
power to take any action to compel or secure performance or observance by the
Transferor or the Servicer, as the case may be, of each of their obligations to
the Grantor Trustee thereunder and to give any consent, request, notice,
direction, approval, extension, or waiver under the Sale and Servicing Agreement
and the Grantor Trust Agreement, and any right of the Issuer to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee. (a) If an Event of Default has
occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11 hereof.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section
6.01.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee shall be segregated from
other funds except to the extent permitted by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; provided, however, that the Indenture Trustee shall
not refuse or fail to perform any of its duties hereunder solely as a result of
nonpayment of its normal fees and expenses and provided, further, that nothing
in this Section 6.01(g) shall be construed to limit the exercise by the
Indenture Trustee of any right or remedy permitted under this Indenture or
otherwise in the event of the Issuer's failure to pay the Indenture Trustee's
fees and expenses pursuant to Section 6.07 hereof. In determining that such
repayment or indemnity is not reasonably assured to it, the Indenture Trustee
must consider not only the likelihood of repayment or indemnity by or on behalf
of the Issuer but also the likelihood of repayment or indemnity from amounts
payable to it from the Collateral pursuant to Section 6.07 hereof.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(i) The Indenture Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any Event of Default (other than an Event of
Default pursuant to Section 5.01(a)(i) or (ii) hereof) unless a Responsible
Officer of the Indenture Trustee shall have received written notice thereof or
otherwise shall have actual knowledge thereof. In the absence of receipt of
notice or such knowledge, the Indenture Trustee may conclusively assume that
there is no Event of Default.
Section 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that such action or omission by the
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12 hereof.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be accountable for the
Issuer's use of the proceeds from the Notes, or responsible for any statement of
the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Indenture Trustee's certificate
of authentication.
Section 6.05. Notices of Default. If a Default occurs and is continuing and
if it is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall mail to each Noteholder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on any Note (including payments pursuant to the mandatory redemption
provisions of such Note), the Indenture Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such Holder to prepare its federal and state income tax returns.
Section 6.07. Compensation and Indemnity. As compensation for its services
hereunder, the Indenture Trustee shall be entitled to receive, on each Payment
Date, the Indenture Trustee's Fee pursuant to Section 8.02(c) hereof (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust) and shall be entitled to reimbursement by the Servicer for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer agrees to cause the Transferor to indemnify the Indenture Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Servicer promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee so to notify the Issuer and the Servicer shall
not relieve the Issuer of its obligations hereunder. The Issuer shall or shall
cause the Servicer to defend any such claim, and the Indenture Trustee may have
separate counsel reasonably acceptable to the Servicer and the Issuer shall or
shall cause the Servicer to pay the reasonable fees and expenses of such
counsel. Neither the Issuer nor the Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.01(a)(vi) or (vii) hereof with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee may
resign at any time by so notifying the Issuer. The Holders of a majority of the
Voting Interests of the Outstanding Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
The Issuer shall remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11 hereof;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of a majority of the Voting Interests of
Outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section 6.08, the Issuer's and the Administrator's obligations under Section
6.07 hereof shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided,
however, that such corporation or banking association shall otherwise be
qualified and eligible under Section 6.11 hereof. The Indenture Trustee shall
provide the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Collateral, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 hereof and no notice to Noteholders of
the appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Collateral or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, jointly with the Indenture
Trustee, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Indenture Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee which has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after the earlier of (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
Section 7.02. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 hereof and the names and addresses of Holders of Notes received
by the Indenture Trustee in its capacity as Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in such Section 7.01
upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
Section 7.03. Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c))
such summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of this Section
7.03(a) and by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each March 1, beginning with March 1, 1999, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed by the Indenture Trustee with the Commission and each securities exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any securities exchange.
Section 7.05. 144A Information. The Indenture Trustee shall provide to any
Holder of a Class B-2 Note and any prospective transferee designated by any such
Holder information regarding the Class B-2 Notes and the Home Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) under the Securities Act for transfer of any such
Note without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A under the Securities Act. Each
Holder of a Class B-2 Note desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Issuer, the Owner Trustee, the Indenture Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with federal and state securities laws.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Collateral, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V hereof.
Section 8.02. Trust Accounts; Payments. (a) On or prior to the Closing
Date, the Issuer shall cause the Servicer to establish and maintain, in the name
of the Indenture Trustee for the benefit of the Noteholders, or on behalf of the
Owner Trustee for the benefit of the Securityholders, the Trust Accounts as
provided in Article V of the Sale and Servicing Agreement and Article V of the
Grantor Trust Agreement. The Indenture Trustee shall deposit amounts into each
of the Trust Accounts in accordance with the terms hereof, the Sale and
Servicing Agreement and the Servicer's Monthly Remittance Report.
(b) On the second Business Day prior to each Payment Date, so long as the
Issuer or its assignee is the Grantor Trust Holder, the Indenture Trustee shall
withdraw from the Collection Account, pursuant to Section 5.01(b)(2) of the Sale
and Servicing Agreement, as a distribution in respect of the Grantor Trust
Certificate, the Available Collection Amount and shall deposit such amount into
the Note Payment Account. On each Payment Date, to the extent funds are
available in the Note Payment Account, the Indenture Trustee shall either retain
funds in the Note Payment Account for payment on such day or make the
withdrawals from the Note Payment Account and deposits into the Certificate
Distribution Account for distribution on such Payment Date as required pursuant
to Section 5.01(c) of the Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, to the extent funds are
available in the Note Payment Account, the Indenture Trustee shall make the
following payments from the amounts on deposit in the Note Payment Account in
the following order of priority (except as otherwise provided in Section 5.04(b)
hereof):
(i) (A) to the Servicer, an amount equal (i) to the Servicing
Compensation (net of any amounts retained prior to deposit into the
Collection Account pursuant to Section 5.01(b)(1) of the Sale and Servicing
Agreement) and all unpaid Servicing Compensation from prior Payment Dates
and (ii) all Nonrecoverable Servicing Advances not previously reimbursed,
(B) to the Indenture Trustee, an amount equal to the Indenture Trustee Fee
and all unpaid Indenture Trustee Fees from prior Payment Dates, (C) to the
Owner Trustee, an amount equal to the Owner Trustee Fee and all unpaid
Owner Trustee Fees from prior Due Periods, (D) to the Custodian, an amount
equal to the Custodian Fee, if any, and all unpaid Custodian Fees from
prior Payment Dates, and (E) to the Grantor Trustee, an amount equal to the
Grantor Trustee Fee and all unpaid Grantor Trustee Fees from prior Payment
Dates; and
(ii) to the Noteholders, the amounts set forth in Sections
5.01(d) and (e) of the Sale and Servicing Agreement.
(d) On each Payment Date and each Redemption Date, to the extent of the
interest of the Indenture Trustee in the Certificate Distribution Account (as
described in Section 5.03(a) of the Sale and Servicing Agreement), the Indenture
Trustee hereby authorizes the Owner Trustee or the Paying Agent, as applicable,
to make the distributions from the Certificate Distribution Account as required
pursuant to Sections 5.01(d) and (e) of the Sale and Servicing Agreement.
Section 8.03. General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Trust Accounts shall be invested in Permitted
Investments and reinvested by the Indenture Trustee at the direction of the
Servicer in accordance with the provisions of Article V of the Sale and
Servicing Agreement. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be deposited by the Indenture Trustee into
the Note Payment Account (and any such income or gain in respect of the
Collection Account shall be treated as a distribution in respect of the Grantor
Trust Certificate), and any loss resulting from such investments shall be
charged to such account. The Issuer will not direct the Indenture Trustee to
make any investment of any funds or to sell any investment held in any of the
Trust Accounts unless the security interest Granted and perfected in such
account will continue to be perfected in such investment or the proceeds of such
sale, in either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any such
investment or sale, if requested by the Indenture Trustee, the Issuer shall
deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the
Indenture Trustee, to such effect.
(b) Subject to Section 6.01(c) hereof, the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Trust Accounts to the Indenture Trustee by 11:00
a.m. Eastern Time (or such other time as may be agreed by the Issuer and
Indenture Trustee) on any Business Day or (ii) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.02 hereof or
(iii) if such Notes shall have been declared due and payable following an Event
of Default, amounts collected or receivable from the Collateral are being
applied in accordance with Section 5.05 hereof as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in one or more
Eligible Investments.
Section 8.04. Servicer's Monthly Statements. On each Payment Date, the
Indenture Trustee shall deliver the Servicer's Monthly Remittance Report (as
defined in the Sale and Servicing Agreement) with respect to such Payment Date
to DTC and the Rating Agencies.
Section 8.05. Release of Collateral. (a) Subject to the payment of its fees
and expenses pursuant to Section 6.07 hereof, the Indenture Trustee may, and
when required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Certificateholders pursuant to Section
5.02(b) of the Sale and Servicing Agreement, to the Servicer pursuant to Section
8.02(c)(i)(A) hereof, to the Indenture Trustee pursuant to Section 8.02(c)(i)(B)
hereof, to the Owner Trustee pursuant to Section 8.02(c)(i)(C) hereof, to the
Custodian pursuant to Section 8.02(c)(i)(D) hereof and to the Grantor Trustee
pursuant to Section 8.02(c)(i)(E) hereof have been paid, release any remaining
portion of the Collateral that secured the Notes from the lien of this Indenture
and release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Trust Accounts. The Indenture Trustee shall release property from
the lien of this Indenture pursuant to this Subsection (b) only upon receipt of
an Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.01 hereof.
Section 8.06. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' prior notice when requested by the Issuer to take any action
pursuant to Section 8.05(a) hereof, accompanied by copies of any instruments
involved, and the Indenture Trustee may also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Collateral. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders. (a)
Without the consent of the Holders of any Notes but with prior notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and
in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, however, that such
action shall not adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and
to add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to the requirements of Article VI hereof; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior consent of the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced by (i) an
Opinion of Counsel or (ii) satisfaction of the Rating Agency Condition,
adversely affect in any material respect the interests of any Noteholder.
Section 9.02. Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior consent of the Rating Agencies, and with the consent of the Holders
of not less than a majority of the Voting Interests of the Outstanding Notes, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the Class Principal Balance (or Class Notional
Balance in the case of the Class A-IO Notes) thereof, the interest rate thereon
or the Termination Price with respect thereto, change the provisions of this
Indenture relating to the application of collections on, or the proceeds of the
sale of, the Collateral to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which, any Note or
the interest thereon is payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V hereof, to the payment of any
such amount due on the Notes on or after the respective due dates thereof (or,
in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Voting Interests of the Outstanding Notes,
the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of the
term "Outstanding" or "Voting Rights";
(d) reduce the percentage of the Voting Rights of the Notes required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Section 5.04 hereof;
(e) modify any provision of this Section except to increase any percentage
specified herein or to provide that certain additional provisions of this
Indenture or the Basic Documents cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(f) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions for the mandatory redemption
of the Notes contained herein; or
(g) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Collateral or, except
as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder of
any Note of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
In connection with requesting the consent of the Noteholders pursuant to
this Section 9.02, the Indenture Trustee shall mail to the Holders of the Notes
to which such amendment or supplemental indenture relates a notice setting forth
in general terms the substance of such supplemental indenture. It shall not be
necessary for any Act of Noteholders under this Section 9.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02 hereof, shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
Section 9.07. Amendments to Owner Trust Agreement.
Subject to Section 11.1 of the Owner Trust Agreement, the Indenture Trustee
shall, upon Issuer Order, consent to any proposed amendment to the Owner Trust
Agreement or an amendment to or waiver of any provision of any other document
relating to the Owner Trust Agreement, such consent to be given without the
necessity of obtaining the consent of the Holders of any Notes upon satisfaction
of the requirements under Section 11.1 of the Owner Trust Agreement. Nothing in
this Section shall be construed to require that any Person obtain the consent of
the Indenture Trustee to any amendment or waiver or any provision of any
document where the making of such amendment or the giving of such waiver without
obtaining the consent of the Indenture Trustee is not prohibited by this
Indenture or by the terms of the document that is the subject of the proposed
amendment or waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption.
The Majority Residual Interestholders (as defined in the Owner Trust
Agreement) may, at their option, effect an early redemption of the Notes on any
Payment Date on or after the Payment Date on which the Pool Principal Balance
declines to 10% or less of the Original Pool Principal Balance. The Majority
Residual Interestholders shall effect such early termination in the manner
specified in and subject to the provisions of Section 11.02(b) of the Sale and
Servicing Agreement and Section 7.01 of the Grantor Trust Agreement.
The Servicer or the Issuer shall furnish the Rating Agencies notice of any
such redemption in accordance with Section 10.02 hereof.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 hereof shall be given by the Indenture Trustee by first-class
mail, postage prepaid, or by facsimile mailed or transmitted not later than 10
days prior to the applicable Redemption Date to each Holder of Notes, as of the
close of business on the Record Date preceding the applicable Redemption Date,
at such Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) that on the Redemption Date Noteholders shall receive the
Note Redemption Amount; and
(iii) the place where such Notes are to be surrendered for
payment of the Termination Price (which shall be the office or agency of
the Issuer to be maintained as provided in Section 3.02 hereof).
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name of the Issuer and at the expense of the Servicer. Failure to give to
any Holder of any Note notice of redemption, or any defect therein, shall not
impair or affect the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Redemption Date; Provision for Payment of
Indenture Trustee. The Notes to be redeemed shall, following notice of
redemption as required by Section 10.02 hereof (in the case of redemption
pursuant to Section 10.01) hereof, on the Redemption Date become due and payable
at the Note Redemption Amount and (unless the Issuer shall default in the
payment of the Note Redemption Amount) no interest shall accrue thereon for any
period after the date to which accrued interest is calculated for purposes of
calculating the Note Redemption Amount. The Issuer may not redeem the Notes
unless (i) all outstanding obligations under the Notes have been paid in full
and (ii) the Indenture Trustee has been paid all amounts to which it is entitled
hereunder.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture (except with respect to the Servicer's
servicing activity in the ordinary course of its business), the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been
complied with.
(b) Prior to the deposit of any Collateral or other property or securities
with the Indenture Trustee that is to be made the basis for the release of any
property or securities subject to the lien of this Indenture, the Issuer shall,
in addition to any obligation imposed in Section 11.01(a) hereof or elsewhere in
this Indenture, furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(c) Whenever the Issuer is required to furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer thereof as
to the matters described in subsection (b) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to the same matters, if
the fair value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to subsection (b) above and this subsection (c),
is 10% or more of the Outstanding Amount of the Notes, but such a certificate
need not be furnished with respect to any securities so deposited, if the fair
value thereof to the Issuer as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent of the Outstanding Amount of the
Notes.
(d) Whenever any property or securities are to be released from the lien of
this Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release) of the
property or securities proposed to be released and stating that in the opinion
of such person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(e) Whenever the Issuer is required to furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer thereof as
to the matters described in subsection (d) above, the Issuer shall also furnish
to the Indenture Trustee an Independent Certificate as to the same matters if
the fair value of the property or securities and of all other property, other
than securities released from the lien of this Indenture since the commencement
of the then-current calendar year, as set forth in the certificates required by
subsection (d) above and this subsection (e), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished in
the case of any release of property or securities if the fair value thereof as
set forth in the related Officer's Certificate is less than $25,000 or less than
one percent of the then Outstanding Amount of the Notes.
Section 11.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Transferor, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Transferor, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI hereof.
Section 11.03. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01
hereof) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section 11.03.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee at its Corporate Trust
Office, or
(ii) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and made,
given, furnished or filed with the Issuer addressed to: Empire Funding Home
Loan Owner Trust 1998-2, in care of Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Emmett R. Harmon, or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer or the Administrator. The Issuer
shall promptly transmit any notice received by it from the Noteholders to
the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
DCR, at the following address: Duff & Phelps Credit Rating Co., 55 East Monroe
Street, 38th Floor, Chicago, Illinois 60603 Attention: MBS Monitoring, (ii) in
the case of S&P, 25 Broadway, 12th Floor, New York, New York 10004 Attention:
Residential Mortgage Group, and (iii) in the case of Fitch, One State Street
Plaza, New York, New York 10004, Attention: Asset Backed Surveillance
Department.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have duly been given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
Section 11.06. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 11.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 11.08. Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents.
Section 11.09. Separability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.10. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Collateral, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 11.11. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.12. GOVERNING LAW. THIS INDENTURE 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 11.13. Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 11.14. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.15. Owner Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or, except as expressly provided for in
Article VI hereof, under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture Trustee
or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may expressly have agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, 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 11.16. No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Transferor, the Servicer or
the Issuer, or join in any institution against the Transferor, the Servicer or
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law, in connection with any obligations relating to
the Notes, this Indenture or any of the Basic Documents.
Section 11.17. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may reasonably be requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
EMPIRE FUNDING HOME LOAN
OWNER TRUST 1998-2
By: Wilmington Trust Company
not in its individual capacity but
solely as Owner Trustee
By:____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By:____________________________________
Name:
Title:
<PAGE>
STATE OF ___________
COUNTY OF __________
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ___________________________,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as
Owner Trustee on behalf of EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a
Delaware business trust, and that such person executed the same as the act of
said business trust for the purpose and consideration therein expressed, and in
the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of June, 1998.
______________________________________________
Notary Public in and for the State of New York
My commission expires:
_____________________________
<PAGE>
STATE OF ___________
COUNTY OF __________
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared __________________________,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of U.S.
BANK NATIONAL ASSOCIATION, a national banking association, and that such person
executed the same as the act of said corporation for the purpose and
consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of June, 1998.
______________________________________________
Notary Public in and for the State of New York
(Seal)
My commission expires:
_____________________________
<PAGE>
EXHIBIT A
CLASS A-1 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$57,666,000
No. A-1-1 CUSIP NO. 291701 CJ 7
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-1 FLOATING RATE ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Fifty-Seven Million Six Hundred
Sixty-Six Thousand Dollars ($57,666,000) payable on each Payment Date in an
amount equal to the result obtained by multiplying (i) a fraction the numerator
of which is the initial principal amount of this Class A-1 Note and the
denominator of which is the aggregate principal amount of all Class A-1 Notes by
(ii) the aggregate amount, if any payable from the Note Payment Account in
respect of principal on the Class A-1 Notes pursuant to Section 5.01(d) and (e)
of the Sale and Servicing Agreement dated as of June 1, 1998; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of (i) the applicable Maturity Date, (ii) the Termination Date, if
any, pursuant to Section 11.01 of the Sale and Servicing Agreement or (iii) the
date on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee at the direction of or with the prior written consent of the
Majority Highest Priority Classes Noteholders has declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of June 1, 1998 between the Issuer
and U.S. Bank National Association, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at a rate per annum equal to
LIBOR for the related LIBOR Determination Date plus 0.06%, subject to a maximum
rate equal to 12.0% on each Payment Date until the principal of this Note is
paid or made available for payment in full, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date); provided, however, that
commencing on the first day of the Accrual Period in which the Clean-up Call
Date occurs, the rate of interest payable on this Note shall be increased by a
per annum rate equal to 0.50%. "LIBOR" means, with respect to each Accrual
Period (other than the initial Accrual Period), the rate for United States
dollar deposits for one month that appears on the Telerate Screen Page 3750 as
of 11:00 a.m., London time, on the related LIBOR Determination Date, and with
respect to the initial Accrual Period, "LIBOR" means 5.64844% per annum. If such
rate does not appear on such page (or such other page as may replace that page
on that service, or if such service is no longer offered, such other service for
displaying LIBOR or comparable rates as may be reasonably selected by the
Indenture Trustee), LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Indenture
Trustee and no Reference Bank Rate is available, LIBOR will be LIBOR applicable
to the preceding Accrual Period. Interest on this Note will accrue for each
Payment Date during the period beginning on the Payment Date in the calendar
month preceding the month in which the related Payment Date occurs (or, in the
case of the first Payment Date, June 23, 1998) and ending on the day preceding
the related Payment Date (each, an "Accrual Period"). Interest will be computed
on the basis of a 360-day year and the actual number of days elapsed in each
Accrual Period. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-1 Floating Rate Asset Backed Notes (herein called the
"Class A-1 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders, has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-1 Notes shall be made pro rata to the holders of the Class A-1 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-1 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-2 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$56,904,000
No. A-2-1 CUSIP NO. 291701 CK 4
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-2 6.280% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Fifty-Six Million Nine Hundred and Four
Thousand Dollars ($56,904,000) payable on each Payment Date in an amount equal
to the result obtained by multiplying (i) a fraction the numerator of which is
the initial principal amount of this Class A-2 Note and the denominator of which
is the aggregate principal amount of all Class A-2 Notes by (ii) the aggregate
amount, if any payable from the Note Payment Account in respect of principal on
the Class A-2 Notes pursuant to Section 5.01(d) and (e) of the Sale and
Servicing Agreement dated as of June 1, 1998; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
(i) the applicable Maturity Date, (ii) the Termination Date, if any, pursuant to
Section 11.01 of the Sale and Servicing Agreement or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Indenture Trustee
at the direction of or with the prior written consent of the Majority Highest
Priority Classes Noteholders has declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture (the
"Indenture") dated as of June 1, 1998 between the Issuer and U.S. Bank National
Association, a national banking association, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:____________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-2 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-2 6.280% Asset Backed Notes (herein called the "Class
A-2 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-2 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-2 Notes shall be made pro rata to the holders of the Class A-2 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-2 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_______
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-3 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$23,089,000
No. A-3-1 CUSIP NO. 291701 CL 2
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-3 6.390% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Twenty-Three Million Eighty-Nine
Thousand Dollars ($23,089,000) payable on each Payment Date in an amount equal
to the result obtained by multiplying (i) a fraction the numerator of which is
the initial principal amount of this Class A-3 Note and the denominator of which
is the aggregate principal amount of all Class A-3 Notes by (ii) the aggregate
amount, if any payable from the Note Payment Account in respect of principal on
the Class A-3 Notes pursuant to Section 5.01(d) and (e) of the Sale and
Servicing Agreement dated as of June 1, 1998; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
(i) the applicable Maturity Date, (ii) the Termination Date, if any, pursuant to
Section 11.01 of the Sale and Servicing Agreement or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Indenture Trustee
at the direction of or with the prior written consent of the Majority Highest
Priority Classes Noteholders has declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture (the
"Indenture") dated as of June 1, 1998 between the Issuer and U.S. Bank National
Association, a national banking association, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-3 6.390% Asset Backed Notes (herein called the "Class
A-3 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-3 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-3 Notes shall be made pro rata to the holders of the Class A-3 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-3 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-4 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$36,212,000
No. A-4-1 CUSIP NO. 291701 CM 0
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-4 6.530% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Thirty-Six Million Two Hundred and
Twelve Thousand Dollars ($36,212,000) payable on each Payment Date in an amount
equal to the result obtained by multiplying (i) a fraction the numerator of
which is the initial principal amount of this Class A-4 Note and the denominator
of which is the aggregate principal amount of all Class A-4 Notes by (ii) the
aggregate amount, if any payable from the Note Payment Account in respect of
principal on the Class A-4 Notes pursuant to Section 5.01(d) and (e) of the Sale
and Servicing Agreement dated as of June 1, 1998; provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of (i) the applicable Maturity Date, (ii) the Termination Date, if any,
pursuant to Section 11.01 of the Sale and Servicing Agreement or (iii) the date
on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee at the direction of or with the prior written consent of the
Majority Highest Priority Classes Noteholders has declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of June 1, 1998 between the Issuer
and U.S. Bank National Association, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-4 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-4 6.530% Asset Backed Notes (herein called the "Class
A-4 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-4 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-4 Notes shall be made pro rata to the holders of the Class A-4 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-4 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-5 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$22,516,500
No. A-5-1 CUSIP NO. 291701 CN 8
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-5 6.960% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Twenty-Two Million Five Hundred Sixteen
Thousand Five Hundred Dollars ($22,516,500) payable on each Payment Date in an
amount equal to the result obtained by multiplying (i) a fraction the numerator
of which is the initial principal amount of this Class A-5 Note and the
denominator of which is the aggregate principal amount of all Class A-5 Notes by
(ii) the aggregate amount, if any payable from the Note Payment Account in
respect of principal on the Class A-5 Notes pursuant to Section 5.01(d) and (e)
of the Sale and Servicing Agreement dated as of June 1, 1998; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of (i) the applicable Maturity Date, (ii) the Termination Date, if
any, pursuant to Section 11.01 of the Sale and Servicing Agreement or (iii) the
date on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee at the direction of or with the prior written consent of the
Majority Highest Priority Classes Noteholders has declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of June 1, 1998 between the Issuer
and U.S. Bank National Association, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-5 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-5 6.960% Asset Backed Notes (herein called the "Class
A-5 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-5 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-5 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-5 Notes shall be made pro rata to the holders of the Class A-5 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-5 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-6 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$19,500,000
No. A-6-1 CUSIP NO. 291701 CP 3
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-6 6.720% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Nineteen Million Five Hundred Thousand
Dollars ($19,500,000) payable on each Payment Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Class A-6 Note and the denominator of which is
the aggregate principal amount of all Class A-6 Notes by (ii) the aggregate
amount, if any payable from the Note Payment Account in respect of principal on
the Class A-6 Notes pursuant to Section 5.01(d) and (e) of the Sale and
Servicing Agreement dated as of June 1, 1998; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
(i) the applicable Maturity Date, (ii) the Termination Date, if any, pursuant to
Section 11.01 of the Sale and Servicing Agreement or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Indenture Trustee
at the direction of or with the prior written consent of the Majority Highest
Priority Classes Noteholders has declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture (the
"Indenture") dated as of June 1, 1998 between the Issuer and U.S. Bank National
Association, a national banking association, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-6 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-6 6.720% Asset Backed Notes (herein called the "Class
A-6 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-6 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class A-6 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-6 Notes shall be made pro rata to the holders of the Class A-6 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-6 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS A-IO NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE HOLDERS OF THIS CLASS A-IO NOTE WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF
INTEREST ON THE CLASS NOTIONAL BALANCE OF THE CLASS A-IO NOTES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE CLASS NOTIONAL
BALANCE OF THE CLASS A-IO NOTES IS EQUAL TO THE CLASS PRINCIPAL BALANCE OF THE
CLASS M-1 NOTES AS SET FORTH IN THE SALE AND SERVICING AGREEMENT. ACCORDINGLY,
THE OUTSTANDING CLASS NOTIONAL BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN
THE INITIAL CLASS NOTIONAL BALANCE SET FORTH BELOW.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
<PAGE>
$30,300,000 (Initial Class Notional Balance)
No. A-IO-1 CUSIP NO. 291701 CQ 1
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS A-IO 5.090% HOME LOAN ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, interest that accrues on the Class Notional Balance of this
Class A-IO Note, payable on each Payment Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is the Class
Notional Balance of this Class A-IO Note and the denominator of which is the
aggregate Class Notional Balance of all Class A-IO Notes by (ii) the aggregate
amount, payable from the Note Payment Account on the Class A-IO Notes pursuant
to Section 5.01(d) of the Sale and Servicing Agreement dated as of June 1, 1998.
The Class Notional Balance of the Class A-IO Notes is equal to the Class
Principal Balance of the Class M-1 Notes as set forth in the Sale and Servicing
Agreement. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of June 1, 1998 between the Issuer
and U.S. Bank National Association, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the Class Notional Balance of this Note is reduced to
zero, on the Class Notional Balance of this Note; provided, however, that
commencing on the first day of the month in which the Clean-up Call Date occurs,
the rate of interest payable on this Note shall be increased by a per annum rate
equal to 0.50%. Interest on this Note will accrue for each Payment Date during
the calendar month preceding such Payment Date or, in the case of the first
Payment Date, during the period commencing on June 23, 1998 and ending on June
30, 1998 (each, an "Accrual Period"). Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Such interest on this Note shall be paid
in the manner specified on the reverse hereof.
The interest on this Note is payable in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS A-IO NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-IO 5.090% Home Loan Asset Backed Notes (herein called
the "Class A-IO Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-IO Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
This Class A-IO Note is an "interest only" Note and the Holder hereof shall
not be entitled to receive any payments in respect of principal.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. "Payment Date" means the 25th day of each month, or, if any such date
is not a Business Day, the next succeeding Business Day, commencing in July
1998. Such checks shall be mailed to the Person entitled thereto at the address
of such Person as it appears on the Note Register as of the applicable Record
Date without requiring that this Note be submitted for notation of payment. Any
reduction in the Class Notional Balance of this Note (or any one or more
Predecessor Notes) effected by any payments made on any other Class of Notes on
any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon.
As provided in the Indenture and the Sale and Servicing Agreement, the
Class A-IO Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate Class Notional Balance will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the Issuer may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the interest on this Note at the times, place
and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS M-1 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. IN
ADDITION, THE PRINCIPAL BALANCE OF THIS NOTE MAY BE REDUCED AS A RESULT OF THE
ALLOCATION OF ALLOCABLE LOSS AMOUNTS TO SUCH PRINCIPAL BALANCE, AS FURTHER SET
FORTH IN THE SALE AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$30,300,000
No. M-1-1 CUSIP NO. 291701 CR 9
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS M-1 6.990% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Thirty Million Three Hundred Thousand
Dollars ($30,300,000) payable on each Payment Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Class M-1 Note and the denominator of which is
the aggregate principal amount of all Class M-1 Notes by (ii) the aggregate
amount, if any payable from the Note Payment Account in respect of principal on
the Class M-1 Notes pursuant to Section 5.01(d) and (e) of the Sale and
Servicing Agreement dated as of June 1, 1998; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
(i) the applicable Maturity Date, (ii) the Termination Date, if any, pursuant to
Section 11.01 of the Sale and Servicing Agreement or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Indenture Trustee
at the direction of or with the prior written consent of the Majority Highest
Priority Classes Noteholders has declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture (the
"Indenture") dated as of June 1, 1998 between the Issuer and U.S. Bank National
Association, a national banking association, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS M-1 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class M-1 6.990% Asset Backed Notes (herein called the "Class
M-1 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class M-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class M-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
Termination Date, if any, pursuant to Section 11.01 of the Sale and Servicing
Agreement. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class M-1 Notes shall be made pro rata to the holders of the Class M-1 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class M-1 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS M-2 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. IN
ADDITION, THE PRINCIPAL BALANCE OF THIS NOTE MAY BE REDUCED AS A RESULT OF THE
ALLOCATION OF ALLOCABLE LOSS AMOUNTS TO SUCH PRINCIPAL BALANCE, AS FURTHER SET
FORTH IN THE SALE AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$21,967,500
No. M-2-1 CUSIP NO. 291701 CS 7
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS M-2 7.430% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Twenty-One Million Nine Hundred
Sixty-Seven Thousand Five Hundred Dollars ($21,967,500) payable on each Payment
Date in an amount equal to the result obtained by multiplying (i) a fraction the
numerator of which is the initial principal amount of this Class M-2 Note and
the denominator of which is the aggregate principal amount of all Class M-2
Notes by (ii) the aggregate amount, if any payable from the Note Payment Account
in respect of principal on the Class M-2 Notes pursuant to Section 5.01(d) and
(e) of the Sale and Servicing Agreement dated as of June 1, 1998; provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of (i) the applicable Maturity Date, (ii) the Termination
Date, if any, pursuant to Section 11.01 of the Sale and Servicing Agreement or
(iii) the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee at the direction of or with the prior
written consent of the Majority Highest Priority Classes Noteholders has
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein are
defined in Article I of the Indenture (the "Indenture") dated as of June 1, 1998
between the Issuer and U.S. Bank National Association, a national banking
association, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS M-2 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class M-2 7.430% Asset Backed Notes (herein called the "Class
M-2 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class M-2 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class M-2 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Notes has
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. All principal payments on the Class M-2 Notes
shall be made pro rata to the holders of the Class M-2 Notes entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class M-2 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS B-1 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
EACH TRANSFEREE OF THIS NOTE OR A BENEFICIAL INTEREST HEREIN THAT IS A PLAN, OR
IS A PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN, SHALL BE
DEEMED TO REPRESENT THAT THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER AT
LEAST ONE OF THE FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN
SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO
TRANSACTIONS EFFECTED BY AN "IN-HOUSE ASSET MANAGER"), PTCE 95-60 (RELATING TO
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS), PTCE 91-38 (RELATING
TO TRANSACTIONS INVOLVING BANK COLLECTIVE INVESTMENT FUNDS), PTCE 90-1 (RELATING
TO TRANSACTIONS INVOLVING INSURANCE COMPANY POOLED SEPARATE ACCOUNTS) AND PTCE
84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER").
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. IN
ADDITION, THE PRINCIPAL BALANCE OF THIS NOTE MAY BE REDUCED AS A RESULT OF THE
ALLOCATION OF ALLOCABLE LOSS AMOUNTS TO SUCH PRINCIPAL BALANCE, AS FURTHER SET
FORTH IN THE SALE AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
$25,755,000
No. B-1-1 CUSIP NO. 291701 CT 5
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS B-1 9.030% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of Twenty-Five Million Seven Hundred
Fifty-Five Thousand Dollars ($25,755,000) payable on each Payment Date in an
amount equal to the result obtained by multiplying (i) a fraction the numerator
of which is the initial principal amount of this Class B-1 Note and the
denominator of which is the aggregate principal amount of all Class B-1 Notes by
(ii) the aggregate amount, if any payable from the Note Payment Account in
respect of principal on the Class B-1 Notes pursuant to Section 5.01(d) and (e)
of the Sale and Servicing Agreement dated as of June 1, 1998; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the earlier of (i) the applicable Maturity Date, (ii) the Termination Date, if
any, pursuant to Section 11.01 of the Sale and Servicing Agreement or (iii) the
date on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee at the direction of or with the prior written consent of the
Majority Highest Priority Classes Noteholders has declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture (the "Indenture") dated as of June 1, 1998 between the Issuer
and U.S. Bank National Association, a national banking association, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the month in which the Clean-up Call Date occurs, the rate of interest
payable on this Note shall be increased by a per annum rate equal to 0.50%.
Interest on this Note will accrue for each Payment Date during the calendar
month preceding such Payment Date, or, in the case of the first Payment Date,
during the period commencing on June 23, 1998 and ending on June 30, 1998 (each,
an "Accrual Period"). Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS B-1 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class B-1 9.030% Asset Backed Notes (herein called the "Class
B-1 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class B-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class B-1 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class B-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
Termination Date, if any, pursuant to Section 11.01 of the Sale and Servicing
Agreement. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class B-1 Notes shall be made pro rata to the holders of the Class B-1 Notes
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class B-1 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
CLASS B-2 NOTE
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
ANY PERSON WHO PURCHASES THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE
DEEMED TO HAVE MADE, UPON SUCH PURCHASE, THE REPRESENTATIONS SET FORTH UNDER THE
HEADING "NOTICES TO INVESTORS" IN THE PRIVATE PLACEMENT MEMORANDUM DATED JUNE
23, 1998 FOR THE EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2 HOME LOAN ASSET
BACKED NOTES, SERIES 1998-2.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
1933 ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF
THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
THIS NOTE MAY NOT BE TRANSFERRED UNLESS THE OWNER TRUSTEE HAS RECEIVED A
CERTIFICATE FROM THE TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. IN
ADDITION, THE PRINCIPAL BALANCE OF THIS NOTE MAY BE REDUCED AS A RESULT OF THE
ALLOCATION OF ALLOCABLE LOSS AMOUNTS TO SUCH PRINCIPAL BALANCE, AS FURTHER SET
FORTH IN THE SALE AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
Note Principal Amount: See Schedule I Attached Hereto
No. B-2-1 CUSIP NO. 291701 CU 2
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
CLASS B-2 9.210% ASSET BACKED NOTES
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum set forth on Schedule I attached hereto
payable on each Payment Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is the initial principal
amount of this Class B-2 Note and the denominator of which is the aggregate
principal amount of all Class B-2 Notes by (ii) the aggregate amount, if any
payable from the Note Payment Account in respect of principal on the Class B-2
Notes pursuant to Section 5.01(d) and (e) of the Sale and Servicing Agreement
dated as of June 1, 1998; provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the
applicable Maturity Date, (ii) the Termination Date, if any, pursuant to Section
11.01 of the Sale and Servicing Agreement or (iii) the date on which an Event of
Default shall have occurred and be continuing, if the Indenture Trustee at the
direction of or with the prior written consent of the Majority Highest Priority
Classes Noteholders has declared the Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. Capitalized terms used but
not defined herein are defined in Article I of the Indenture (the "Indenture")
dated as of June 1, 1998 between the Issuer and U.S. Bank National Association,
a national banking association, which also contains rules as to construction
that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment in full, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date); provided, however, that commencing on the first day
of the Accrual Period in which the Clean-up Call Date occurs, the rate of
interest payable on this Note shall be increased by a per annum rate equal to
0.50%. Interest on this Note will accrue for each Payment Date during the
calendar month preceding such Payment Date, or, in the case of the first Payment
Date, during the period commencing on June 23, 1998 and ending on June 30, 1998
(each, an "Accrual Period"). Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: June 23, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Owner Trust Agreement
By:___________________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: June 23, 1998
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[REVERSE OF CLASS B-2 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class B-2 9.210% Asset Backed Notes (herein called the "Class
B-2 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class B-2 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-6 Notes, Class A-IO Notes, Class M-1 Notes, Class M-2
Notes, Class B-1 Notes and Class B-2 Notes (collectively, the "Notes") are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
Principal of the Class B-2 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 25th day of each
month, or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the applicable Maturity Date and the
termination of the Sale and Servicing Agreement pursuant to Section 11.01(a)
thereof. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, at the
direction or upon the prior written consent of the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Notes has
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. All principal payments on the Class B-2 Notes
shall be made pro rata to the holders of the Class B-2 Notes entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in (St. Paul, Minnesota).
As provided in the Indenture and the Sale and Servicing Agreement, the
Class B-2 Notes may be redeemed (a) in whole, but not in part, at the option of
the holders of greater than 50% of the Residual Interest Certificates on any
Payment Date on and after the date on which the Pool Principal Balance is less
than 10% of the Original Pool Principal Balance.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the Issuer may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing not
less than a majority of the Voting Interests of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual capacity,
the Owner Trustee in its individual capacity, any owner of a beneficial interest
in the Issuer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Indenture. The Holder of this Note by its acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints, attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:_____________________
___________________________*/
Signature Guaranteed:
___________________________*/
- -----------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE>
- --------------------------------------------------------------------------------
SCHEDULE I
- --------------------------------------------------------------------------------
Amount Date Initial
- ---------------------- -------------------------------------- ------------------
$9,090,000 June 23, 1998
- ---------------------- -------------------------------------- ------------------
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<PAGE>
<PAGE>
EXHIBIT B-1
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Empire Funding Home Loan Owner Trust 1998-2
Asset-Backed Notes Series 1998-2
-------------------------------------------
Reference is hereby made to the Indenture dated as of June 1, 1998 (the
"Indenture") between Empire Funding Home Loan Owner Trust 1998-2 (the "Trust")
and U.S. Bank National Association, (the "Indenture Trustee"). Capitalized terms
used but not defined herein shall have the meanings given to them in the Sale
and Servicing Agreement dated as of June 1, 1998 among the Trust, Empire Funding
Corp. ("Empire Funding"), PaineWebber Mortgage Acceptance Corporation IV (the
"Depositor"), and U.S. Bank National Association, as Indenture Trustee.
The undersigned (the "Transferor") has requested a transfer of $_________
initial Class Principal Balance of Class B-2 Notes to [insert name of
transferee].
In connection with such request, and in respect of such Class B-2 Notes,
the Transferor hereby certifies that such Class B-2 Notes are being transferred
in accordance with (i) the transfer restrictions set forth in the Indenture and
the Class B-2 Notes and (ii) Rule 144A under the Securities Act of 1933, as
amended to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which purchaser
is aware that the sale to it is being made in reliance upon Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of PaineWebber Incorporated and the Depositor.
___________________________
[Name of Transferor]
By: ______________________
Name:
Title:
Dated: ________________
<PAGE>
EXHIBIT B-2
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
__________________________
[Date]
Dear Sirs:
In connection with our proposed purchase of $_________________ initial
Class Principal Balance of Class B-2 Home Loan Asset Backed Notes, Series 1998-2
(the "Offered Notes") issued by Empire Funding Home Loan Owner Trust 1998-2 (the
"Trust"), we confirm that:
(1) We have received a copy of the Private Placement Memorandum dated June [ ],
1998 relating to the Offered Notes (the "Private Placement Memorandum"),
and we understand that the Offered Notes have not been, and will not be,
registered under the Securities Act of 1933, as amended (the "1933 Act") or
any state securities laws, and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should
sell any Offered Notes we will do so only (A) pursuant to a registration
statement which has been declared effective under the 1933 Act, (B) for so
long as the Offered Notes are eligible for resale pursuant to Rule 144A
under the 1933 Act, to a Person we reasonably believe is a "qualified
institutional buyer" as defined in Rule 144A that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(C) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the 1933 Act (an
"Institutional Accredited Investor") that is acquiring the Offered Notes
for its own account, or for the account of such an Institutional Accredited
Investor, for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the 1933 Act, in
each case in compliance with the requirements of the Indenture dated as of
June 1, 1998 between Empire Funding Home Loan Owner Trust 1998-2 and U.S.
Bank National Association, as Indenture Trustee, and applicable state
securities laws; and we further agree, in the capacities stated above, to
provide to any person purchasing any of the Offered Notes from us a notice
advising such purchaser that resales of the Offered Notes are restricted as
stated herein.
(2) We understand that, in connection with any proposed resale of any Offered
Notes to an Institutional Accredited Investor, we will be required to
furnish to the Indenture Trustee and the Depositor a certification from
such transferee in the form hereof to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the 1933 Act and applicable state
securities laws. We further understand that the Offered Notes purchased by
us will bear a legend to the foregoing effect.
(3) We are acquiring the Offered Notes for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in
violation of the 1933 Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Offered Notes, and we and any account
for which we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Offered Notes purchased by us for our own account or for one or more
accounts (each of which is an Institutional Accredited Investor) as to each
of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make our
investment decision.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Private Placement Memorandum or, if
not defined therein, in the Indenture.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
______________________________
[Purchaser]
By:__________________________
Name:
Title:
<PAGE>
EXHIBIT B-3
[FORM OF ERISA TRANSFER CERTIFICATE]
_______________________
[Date]
Dear Sirs:
In connection with our proposed purchase of $_________________ initial
Class Principal Balance of Class B-2 Home Loan Asset Backed Notes, Series 1998-2
(the "Offered Notes") issued by Empire Funding Home Loan Owner Trust 1998-2 (the
"Owner Trust"), we confirm that:
1. The undersigned is the ________________ of ________________ (the
"Investor"), a [corporation duly organized] and existing under the laws of
_____________ on behalf of which he makes this affidavit.
2. The Investor is not an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code or any governmental plan (as defined in Section 3(32)
of ERISA) subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (each a "Plan")
nor a person acting on behalf of or investing the assets of such a Plan.
3. The Investor hereby acknowledges that under the terms of the Indenture
(the "Agreement") between Empire Funding Home Loan Owner Trust 1998-2 and U.S.
Bank National Association, as paying agent, dated as of June 1, 1998, no
transfer of the Definitive Notes (as defined in the Agreement) shall be
permitted to be made to any person unless the Depositor and Owner Trustee have
received a certificate from such transferee in the form hereof.
[FOR TRANSFERS IN RELIANCE UPON RULE 144A]
4. The Investor is a "qualified institutional buyer" (as such term is
defined under Rule 144A under the Securities Act of 1933, as amended (the "1933
Act"), and is acquiring the Offered Notes for its own account or as a fiduciary
or agent for others (which others also are "qualified institutional buyers").
The Investor is familiar with Rule 144A under the 1933 Act, and is aware that
the transferor of the Offered Notes and other parties intend to rely on the
statements made herein and the exemption from the registration requirements of
the 1933 Act provided by Rule 144A.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Private Placement Memorandum dated
June 23, 1998, related to the Offered Notes or, if not defined therein, in the
Indenture.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
_____________________________
[Purchaser]
By: ________________________
Name:
Title:
<PAGE>
EXHIBIT C
ANY PERSON WHO PURCHASES THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE
DEEMED TO HAVE MADE, UPON SUCH PURCHASE, THE REPRESENTATIONS SET FORTH UNDER THE
HEADING "NOTICES TO INVESTORS" IN THE PRIVATE PLACEMENT MEMORANDUM DATED JUNE
__, 1998 FOR THE EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2 HOME LOAN ASSET
BACKED NOTES, SERIES 1998-2.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
1933 ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF
THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
THIS NOTE MAY NOT BE TRANSFERRED UNLESS THE OWNER TRUSTEE HAS RECEIVED A
CERTIFICATE FROM THE TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
================================================================================
SALE AND SERVICING AGREEMENT
Dated as of June 1, 1998
among
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
(Issuer)
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV
(Depositor)
EMPIRE FUNDING CORP.
(Transferor and Servicer)
and
U.S. BANK NATIONAL ASSOCIATION
(Indenture Trustee and Grantor Trustee)
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
HOME LOAN ASSET BACKED NOTES
SERIES 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions
Section 1.02 Other Definitional Provisions
ARTICLE II
CONVEYANCE OF THE GRANTOR TRUST CERTIFICATE
Section 2.01 Conveyance of the Grantor Trust Certificate
Section 2.02 Ownership and Possession of Grantor Trust Certificate
Section 2.03 Books and Records; Principal Place of Business
Section 2.04 Delivery of Grantor Trust Certificate; Further Assurances
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Depositor
Section 3.02 Representations and Warranties of the Transferor
Section 3.03 Representations, Warranties and Covenants of the Servicer
Section 3.04 Representations and Warranties Regarding Individual Home Loans
Section 3.05 Purchase and Substitution
ARTICLE IV
ADMINISTRATION AND SERVICING OF THE HOME LOANS
Section 4.01 Duties of the Servicer
Section 4.02 [Reserved]
Section 4.03 Fidelity Bond; Errors and Omissions Insurance
Section 4.04 Filing of Continuation Statements
Section 4.05 [Reserved]
Section 4.06 Subservicing
Section 4.07 Successor Servicers
Section 4.08 Collections from Insurance Policies
Section 4.09 Reports to the Securities and Exchange Commission;
144A Information
Section 4.10 Recovery from Defaulted Home Loans and Liquidated Home Loans
Section 4.11 Title, Management and Disposition of Foreclosure Property
ARTICLE V
ESTABLISHMENT OF TRUST ACCOUNTS
Section 5.01 Collection Account and Note Payment Account
Section 5.02 Certificate Distribution Account
Section 5.03 Trust Accounts; Trust Account Property
Section 5.04 Allocation of Losses
ARTICLE VI
STATEMENTS AND REPORTS; WITHHOLDING
Section 6.01 Statements
Section 6.02 Withholding
ARTICLE VII
GENERAL SERVICING PROCEDURE
Section 7.01 Due-On-Sale; Due-on-Encumbrance
Section 7.02 Release of Home Loan Files
Section 7.03 Servicing Compensation
Section 7.04 Statement as to Compliance and Financial Statements
Section 7.05 Independent Public Accountants' Servicing Report
Section 7.06 Right to Examine Servicer Records
Section 7.07 Reports to the Indenture Trustee; Collection Account Statements
Section 7.08 Financial Statements
ARTICLE VIII
(RESERVED)
ARTICLE IX
THE SERVICER
Section 9.01 Indemnification; Third Party Claims
Section 9.02 Merger or Consolidation of the Servicer
Section 9.03 Limitation on Liability of the Servicer and Others
Section 9.04 Servicer Not to Resign; Assignment
Section 9.05 Relationship of Servicer to the Grantor Trust
and the Grantor Trustee
Section 9.06 Servicer May Own Securities
ARTICLE X
DEFAULT
Section 10.01 Events of Default
Section 10.02 Grantor Trustee to Act; Appointment of Successor
Section 10.03 Waiver of Defaults
Section 10.04 Accounting Upon Termination of Servicer
ARTICLE XI
TERMINATION
Section 11.01 Termination
Section 11.02 Optional Termination
Section 11.03 Notice of Termination
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Acts of Noteholders
Section 12.02 Amendment
Section 12.03 Recordation of Agreement
Section 12.04 Duration of Agreement
Section 12.05 Governing Law
Section 12.06 Notices
Section 12.07 Severability of Provisions
Section 12.08 No Partnership
Section 12.09 Counterparts
Section 12.10 Successors and Assigns
Section 12.11 Headings
Section 12.12 Actions of Securityholders
Section 12.13 Reports to Rating Agencies
Section 12.14 Holders of the Residual Interest Certificates
<PAGE>
EXHIBIT A - Home Loan Schedule (available upon request from the Depositor)
EXHIBIT B - Form of Servicer's Monthly Remittance Report to Trustee
(available upon request from the Depositor)
<PAGE>
This Sale and Servicing Agreement is entered into effective as of June 1,
1998, among EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2, a Delaware business
trust (the "Issuer" or the "Owner Trust"), PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, a Delaware corporation, as Depositor (the "Depositor"), EMPIRE
FUNDING CORP., an Oklahoma corporation ("Empire Funding"), as Transferor (in
such capacity, the "Transferor") and Servicer (in such capacity, the
"Servicer"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association,
as Indenture Trustee on behalf of the Noteholders (in such capacity, the
"Indenture Trustee") and as Grantor Trustee on behalf of the holder of the
Grantor Trust Certificate (in such capacity, the "Grantor Trustee").
W I T N E S E T H:
In consideration of the mutual agreements herein contained, the parties
hereto hereby agree as follows for the benefit of each of them and for the
benefit of the holders of the Notes issued under the Indenture, the Residual
Interest Certificates issued under the Owner Trust Agreement and the Grantor
Trust Certificate issued under the Grantor Trust Agreement:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article. Unless otherwise specified, all calculations of interest described
herein shall be made on the basis of a 360-day year consisting of twelve 30-day
months, except that with respect to the Class A-1 Notes, calculations of accrued
interest shall be made on the basis of a 360-day year and the actual number of
days elapsed in each Accrual Period.
Accepted Servicing Procedures: Servicing procedures that satisfy the
following: (a) meet at least the same standards the Servicer would follow in
exercising reasonable care in servicing mortgage loans such as the Home Loans
held for its own account; (b) comply with applicable state and federal law; (c)
comply with the provisions of the related Debt Instruments and Mortgages; and
(d) give due consideration to the accepted standards of practice of prudent
consumer loan servicers that service mortgage loans comparable to the Home Loans
and the reliance placed by the Grantor Trust Holders and Securityholders on the
Servicer for the servicing of the Home Loans, but without regard to:
(i) any relationship that the Servicer, any Subservicer or any Affiliate
of the Servicer or any Subservicer may have with the related Obligor;
(ii) the ownership of any Notes or the Residual Interest Certificates by
the Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make Servicing Advances; or
(iv) the Servicer's or any Subservicer's right to receive compensation for
its services hereunder with respect to any particular transaction.
In determining whether to undertake certain servicing actions with respect
to one or more delinquent or defaulted Home Loans, the Servicer is expected to
consider the reasonable likelihood of (A) recovering an economically significant
amount attributable to the outstanding interest and principal owing on such Home
Loan as a result of such actions, in excess of (B) the costs and expenses to
obtain such recovery (including without limitation any Servicing Advances and,
if applicable, the outstanding indebtedness of all Superior Liens), and in
relation to (C) the expected timing of such recovery therefrom.
Accrual Period: With respect to the Class A-1 Notes, the period beginning
on the Payment Date in the calendar month preceding the month in which the
related Payment Date occurs (or, in the case of the first Payment Date, June 23,
1998) and ending on the day preceding the related Payment Date. With respect to
the other Classes of Notes, the calendar month preceding the month in which the
related Payment Date occurs (or in the case of the first Payment Date, the
period commencing on the Closing Date and ending on the last day of June 1998).
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, the term "control", when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have corresponding meanings.
Agreement: This Sale and Servicing Agreement and all amendments hereof and
supplements hereto.
Allocable Loss Amount: With respect to each Payment Date after the Initial
Undercollateralization Amount has been reduced to zero, the excess, if any, of
(a) the aggregate of the Class Principal Balances of all Classes of Notes (after
giving effect to all payments on such Payment Date) over (b) the Pool Principal
Balance as of the end of the preceding Due Period. With respect to each Payment
Date prior to the Payment Date on which the Undercollateralization Amount is
reduced to zero, zero.
Allocable Loss Amount Priority: With respect to any Payment Date,
sequentially, to the Class B-2 Notes, the Class B-1 Notes, the Class M-2 Notes
and the Class M-1 Notes, in that order.
Assignment of Mortgage: With respect to each Home Loan (other than an
Unsecured Home Loan), an assignment, notice of transfer or equivalent instrument
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect or record the sale of the related Home Loan which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law.
Available Collection Amount: With respect to any Payment Date, an amount
without duplication equal to the sum of: (i) all amounts received on the Home
Loans or required to be paid by the Servicer or the Transferor during the
related Due Period (exclusive of amounts not required to be deposited by the
Servicer in the Collection Account pursuant to Section 5.01(b)(1) hereof and
amounts permitted to be withdrawn by the Indenture Trustee from the Collection
Account pursuant to Section 5.01(b)(3) hereof) as reduced by any portion thereof
that may not be withdrawn therefrom pursuant to an order of a United States
bankruptcy court of competent jurisdiction imposing a stay pursuant to section
362 of the United States Bankruptcy Code; (ii) any and all income or gain from
investments in the Collection Account, Note Payment Account and Certificate
Distribution Account; (iii) upon exercise of optional termination of the Notes
pursuant to Section 11.02 hereof, the Termination Price; and (iv) the Purchase
Price paid for any Home Loans purchased pursuant to Section 3.05 hereof prior to
the related Determination Date and the Substitution Adjustment to be deposited
in the Collection Account in connection with any substitution, in each case
prior to the related Determination Date.
Available Payment Amount: With respect to any Payment Date, the Available
Collection Amount minus the amount required to be paid from the Note Payment
Account pursuant to Section 5.01(c)(i).
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking institutions in The City of New York or in the city in which the
corporate trust office of the Indenture Trustee or Grantor Trustee is located or
the city in which the Servicer's servicing operations are located and are
authorized or obligated by law or executive order to be closed.
Certificate Distribution Account: The account designated as such,
established and maintained pursuant to Section 5.02 hereof.
Certificate Register: The register established pursuant to Section 3.4 of
the Owner Trust Agreement.
Certificateholder: A holder of a Residual Interest Certificate.
Class: With respect to the Notes, all Notes bearing the same class
designation.
Class A Notes: Collectively the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6 and Class A-IO Notes.
Class A-1 Note, Class A-2 Note, Class A-3 Note, Class A-4 Note, Class A-5
Note, Class A-6 Note, Class A-IO Note, Class M-1 Note, Class M-2 Note, Class B-1
Note and Class B-2 Note: The respective meanings assigned thereto in the
Indenture.
Class A-6 Lockout Excess Spread Payment Amount: For any Payment Date will
be the lesser of (a) the product of (i) 0% until and including the Payment Date
in June 2003 and 100% thereafter and (ii) the product of (A) a fraction, the
numerator of which is the Class Principal Balance of the Class A-6 Notes
immediately prior to such Payment Date and the denominator of which is the
aggregate Class Principal Balance of all Classes of Class A Notes (other than
the Class A-IO Notes) immediately prior to such Payment Date and (B) the amount
of Excess Spread equal to the Overcollateralization Deficiency Amount, if any,
that would be necessary to reduce the aggregate Class Principal Balance of the
Class A Notes (other than the Class A-IO Notes) (after giving effect to the
application of payments of the Regular Payment Amount), to the Senior Optimal
Principal Balance for such Payment Date, and (b) an amount equal to the
outstanding Class Principal Balance of the Class A-6 Notes.
Class A-6 Lockout Regular Payment Amount: For any Payment Date will be the
lesser of (a) the product of (i) 0% until and including the Payment Date in June
2003 and 100% thereafter and (ii) the product of (A) a fraction, the numerator
of which is the Class Principal Balance of the Class A-6 Notes immediately prior
to such Payment Date and the denominator of which is the aggregate Class
Principal Balance of all Classes of Class A Notes (other than the Class A-IO
Notes) immediately prior to such Payment Date and (B) the amount of Regular
Payment Amount remaining after all payments of interest on the Notes have been
made on such Payment Date necessary to reduce the aggregate Class Principal
Balance of the Class A Notes (other than the Class A-IO Notes) to the Senior
Optimal Principal Balance for such Payment Date, and (b) an amount equal to the
outstanding Class Principal Balance of the Class A-6 Notes.
Class B-1 Optimal Principal Balance: With respect to any Payment Date prior
to the Stepdown Date, zero; and with respect to any other Payment Date, the Pool
Principal Balance as of the related Determination Date minus the sum of (i) the
aggregate Class Principal Balance of the Class A Notes and the Mezzanine Notes
(after taking into account any payments made on such Payment Date in reduction
of the Class Principal Balances of the Classes of Class A Notes and Mezzanine
Notes) and (ii) the greater of (x) the sum of (1) 6.060% of the Pool Principal
Balance as of the related Determination Date and (2) the Overcollateralization
Target Amount for such Payment Date (calculated without giving effect to the
proviso in the definition thereof) and (y) 0.50% of the Original Pool Principal
Balance; provided, however, that such amount shall never be less than zero or
greater than the Original Class Principal Balance of the Class B-1 Notes.
Class B-2 Optimal Principal Balance: With respect to any Payment Date prior
to the Stepdown Date, zero; and with respect to any other Payment Date, the Pool
Principal Balance as of the related Determination Date minus the sum of (i) the
aggregate Class Principal Balance of the Class A Notes, the Mezzanine Notes and
the Class B-1 Notes (after taking into account any payments made on such Payment
Date in reduction of the Class Principal Balances of the Classes of Class A
Notes, Mezzanine Notes and Class B-1 Notes) and (ii) the Overcollateralization
Target Amount for such Payment Date; provided, however, that such amount shall
never be less than zero or greater than the Original Class Principal Balance of
the Class B-2 Notes.
Class Factor: With respect to each Class and any date of determination, the
then applicable Class Principal Balance or Class Notional Balance of such Class
divided by the Original Class Principal Balance or initial Class Notional
Balance thereof.
Class M-1 Optimal Principal Balance: With respect to any Payment Date prior
to the Stepdown Date, zero; and with respect to any other Payment Date, the Pool
Principal Balance as of the related Determination Date minus the sum of (i) the
aggregate Class Principal Balance of the Class A Notes (after taking into
account payments made on such Payment Date in reduction of the Class Principal
Balances of the Classes of Class A Notes) and (ii) the greater of (x) the sum of
(1) 37.875% of the Pool Principal Balance as of the related Determination Date
and (2) the Overcollateralization Target Amount for such Payment Date
(calculated without giving effect to the proviso in the definition thereof) and
(y) 0.50% of the Original Pool Principal Balance; provided, however, that such
amount shall never be less than zero or greater than the Original Class
Principal Balance of the Class M-1 Notes.
Class M-2 Optimal Principal Balance: With respect to any Payment Date prior
to the Stepdown Date, zero; with respect to any other Payment Date, the Pool
Principal Balance as of the related Determination Date minus the sum of (i) the
aggregate Class Principal Balance of the Class A Notes (after taking into
account any payments made on such Payment Date in reduction of the Class
Principal Balances of the Classes of Class A Notes) plus the Class Principal
Balance of the Class M-1 Notes (after taking into account any payments made on
such Payment Date in reduction of the Class Principal Balance of the Class M-1
Notes) and (ii) the greater of (x) the sum of (1) 23.230% of the Pool Principal
Balance as of the related Determination Date and (2) the Overcollateralization
Target Amount for such Payment Date (without giving effect to the proviso in the
definition thereof) and (y) 0.50% of the Original Pool Principal Balance;
provided, however, that such amount shall never be less than zero or greater
than the Original Class Principal Balance of the Class M-2 Notes.
Class Notional Balance: With respect to each Payment Date and the Class
A-IO Notes, through and including August 25, 2000, the Class Principal Balance
of the Class M-1 Notes on the immediately preceding Payment Date, or, in the
case of the first Payment Date, on the Closing Date; with respect to each
Payment Date after August 25, 2000, zero.
Class Principal Balance: With respect to each Class of Notes other than the
Class A-IO Notes and as of any date of determination, the Original Class
Principal Balance of such Class reduced by the sum of (i) all amounts previously
distributed in respect of principal of such Class on all previous Payment Dates
and (ii) with respect to the Class M-1, Class M-2, Class B-1 and Class B-2
Notes, all Allocable Loss Amounts applied in reduction of principal of such
Classes on all previous Payment Dates.
Clean-up Call Date: The first Payment Date on which the Pool Principal
Balance declines to 10% or less of the Original Pool Principal Balance.
Closing Date: June 23, 1998.
Code: The Internal Revenue Code of 1986, as amended from time to time, and
Treasury Regulations promulgated thereunder.
Collection Account: The account designated as such, established and
maintained by the Servicer, for the benefit of the Grantor Trust Holder, in
accordance with Section 5.01 hereof.
Combination Loan: A loan, including an Unsecured Home Loan, the proceeds of
which were used by the Obligor in combination to finance property improvements
and for debt consolidation, cash out refinancing or other purposes.
Combined Loan-to-Value Ratio: With respect to any Home Loan (other than an
Unsecured Home Loan), the fraction, expressed as a percentage, the numerator of
which is the principal balance of such Home Loan at origination plus, in the
case of a junior lien Home Loan, the aggregate outstanding principal balance of
each related Superior Lien on the date of origination of such Home Loan, and the
denominator of which is the value as determined pursuant to the Transferor's
underwriting guidelines of the related Mortgaged Property at the time of
origination of such Home Loan.
Credit Score: The credit evaluation scoring methodology developed by Fair,
Isaac and Company.
Custodial Agreement: The custodial agreement dated as of June 1, 1998 by
and among the Depositor, Empire Funding, as the Transferor and the Servicer, and
U.S. Bank National Association, a national banking association, as the custodian
and the Grantor Trustee, providing for the retention of the applicable Grantor
Trustee's Home Loan Files by such custodian on behalf of the Grantor Trustee.
Custodian: Any custodian appointed by the Grantor Trustee pursuant to the
Custodial Agreement, which custodian shall not be affiliated with the Servicer,
the Transferor, any Subservicer or the Depositor. U.S. Bank National
Association, shall be the initial Custodian pursuant to the terms of the
Custodial Agreement.
Custodian Fee: If applicable, the annual fee payable to any Custodian,
calculated and payable monthly on each Payment Date pursuant to Section
5.01(c)(i) hereof equal to the fee, if any, set forth in the Custodial
Agreement.
Custodian's Final Certification: As defined in Section 2.06(c) of the
Grantor Trust Agreement.
Custodian's Initial Certification: As defined in Section 2.06(a) of the
Grantor Trust Agreement.
Custodian's Updated Certification: As defined in Section 2.06(c) of the
Grantor Trust Agreement.
Cut-Off Date: The close of business on May 31, 1998.
DCR: Duff & Phelps Credit Rating Co.
Debt Consolidation Loan: A loan, including any Unsecured Home Loan, the
proceeds of which were primarily used by the related Obligor for debt
consolidation or cash out refinance purposes or for purposes other than to
finance property improvements.
Debt Instrument: The note or other evidence of indebtedness evidencing the
indebtedness of an Obligor under a Home Loan.
Defaulted Home Loan: With respect to any date of determination, any Home
Loan, including, without limitation, any Liquidated Home Loan with respect to
which any of the following has occurred as of the end of the preceding Due
Period: (a) foreclosure or similar proceedings have been commenced; (b) any
portion of a Monthly Payment becomes 180 days past due by the related Obligor;
or (c) the Servicer or any Subservicer has determined in good faith and in
accordance with the Accepted Servicing Procedures that such Home Loan is in
default for a period in excess of 30 days or imminent default and that such
default or imminent default involves the nonpayment of any Monthly Payment or a
default which has or would have a material adverse affect on such Home Loan.
Defective Home Loan: As defined in Section 3.05 hereof.
Deleted Home Loan: A Home Loan replaced or to be replaced by one or more
than one Qualified Substitute Home Loan.
Delinquent: A Home Loan is "Delinquent" if any Monthly Payment due thereon
is not made by the close of business on the day such Monthly Payment is
scheduled to be paid; provided, that such Home Loan shall not be "Delinquent" if
the Monthly Payment for such Home Loan has been modified pursuant to a Chapter
13 bankruptcy proceeding by the Obligor and such modified Monthly Payment due
thereon is made by the close of business on the day such modified Monthly
Payment is scheduled to be paid. A Home Loan is "30 days Delinquent" if such
Monthly Payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
Monthly Payment was due or, if there is no such corresponding day (e.g., as when
a 30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month. The
determination of whether a Home Loan is "60 days Delinquent," "90 days
Delinquent", etc. shall be made in like manner.
Delivery: When used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(1)(i) of
the UCC and are susceptible of physical delivery, transfer thereof to
the Indenture Trustee or its nominee or custodian by physical delivery
to the Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC), transfer thereof (i)
by delivery of such certificated security endorsed to, or registered in
the name of, the Indenture Trustee or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section
8-313 of the UCC) and the making by such financial intermediary of
entries on its books and records identifying such certificated
securities as belonging to the Indenture Trustee or its nominee or
custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the
Indenture Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate securities account of the
transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Indenture Trustee or its
nominee or custodian of such securities and the making by such
financial intermediary of entries on its books and records identifying
such certificated securities as belonging to the Indenture Trustee or
its nominee or custodian (all of the foregoing, "Physical Property")
and, in any event, any such Physical Property in registered form shall
be in the name of the Indenture Trustee or its nominee or custodian;
and such additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property (as defined herein) to the Indenture Trustee or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, FNMA or FHLMC that is a book-entry security held through the
Federal Reserve System pursuant to federal book-entry regulations, the
following procedures, all in accordance with applicable law, including
applicable federal regulations and Articles 8 and 9 of the UCC: the
making by a Federal Reserve Bank of an appropriate entry crediting such
Trust Account Property to an account of a financial intermediary that
is also a "participant" pursuant to applicable federal regulations; the
making by such financial intermediary of entries in its books and
records crediting such book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations to the
securities account of the Indenture Trustee or its nominee or custodian
and indicating that such custodian holds such Trust Account Property
solely as agent for the Indenture Trustee or its nominee or custodian
and the sending by such financial intermediary of confirmation of the
purchase by the Indenture Trustee or its nominee or custodian of such
book-entry security; and such additional or alternative procedures as
may hereafter become appropriate to effect complete transfer of
ownership of any such Trust Account Property to the Indenture Trustee
or its nominee or custodian, consistent with changes in applicable law
or regulations or the interpretation thereof including, without
limitation, Article 8 of the UCC; and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the purchase
by the Indenture Trustee or its nominee or custodian of such
uncertificated security, and the making by such financial intermediary
of entries on its books and records identifying such uncertificated
certificates as belonging to the Indenture Trustee or its nominee or
custodian.
Denomination: With respect to a Note, the portion of the Original Class
Principal Balance represented by such Note as specified on the face thereof.
Depositor: PaineWebber Mortgage Acceptance Corporation IV, a Delaware
corporation, and any successor thereto.
Determination Date: With respect to any Payment Date, the 14th calendar day
of the month in which such Payment Date occurs or if such day is not a Business
Day, the immediately preceding Business Day.
Due Date: The day of the month on which the Monthly Payment is due from the
Obligor on a Home Loan.
Due Period: With respect to any Determination Date or Payment Date, the
calendar month immediately preceding such Determination Date or Payment Date, as
the case may be.
Eligible Account: At any time, an account which is any of the following:
(i) an account maintained with a depository institution (A) the long-term debt
obligations of which are at such time rated by each Rating Agency in one of
their two highest long-term rating categories or (B) the short-term debt
obligations of which are then rated by each Rating Agency in their highest
short-term rating category; (ii) an account the deposits in which are fully
insured by either the Bank Insurance Fund or the Savings Association Insurance
Fund of the FDIC; (iii) a trust account (which shall be a "segregated trust
account") maintained with the corporate trust department of a federal or state
chartered depository institution or trust company with trust powers and acting
in its fiduciary capacity for the benefit of the Indenture Trustee and the
Issuer, which depository institution or trust company shall have capital and
surplus of not less than $50,000,000; or (iv) an account that will not cause any
Rating Agency to downgrade or withdraw its then-current rating(s) assigned to
the Notes, as evidenced in writing by such Rating Agency. (Each reference in
this definition of "Eligible Account" to the Rating Agency shall be construed as
a reference to S&P, Fitch and DCR).
Eligible Servicer: A Person that (i) has demonstrated the ability
professionally and competently to service a portfolio of mortgage loans similar
to the Home Loans and (ii) has a net worth calculated in accordance with GAAP of
at least $500,000.
Empire Funding: Empire Funding Corp., an Oklahoma corporation.
Event of Default: As described in Section 10.01 hereof.
Excess Spread: With respect to any Payment Date, the excess of (a) the
Available Payment Amount over (b) the Regular Payment Amount.
FDIC: The Federal Deposit Insurance Corporation and any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation and any successor
thereto.
Fidelity Bond: As described in Section 4.03 hereof.
Fitch: Fitch IBCA, Inc. or any successor thereto.
FNMA: The Federal National Mortgage Association and any successor thereto.
Foreclosed Loan: As of any date of determination, any Home Loan that has
been discharged as a result of (i) the completion of foreclosure or comparable
proceedings; (ii) the Grantor Trustee's acceptance of the deed or other evidence
of title to any related Mortgaged Property in lieu of foreclosure or other
comparable proceeding; or (iii) the acquisition by the Grantor Trustee of title
to any related Mortgaged Property by operation of law.
Foreclosure Property: Any real property securing a Foreclosed Loan that has
been acquired by the Servicer through foreclosure, deed in lieu of foreclosure
or similar proceedings in respect of the related Home Loan.
GAAP: Generally accepted accounting principles as in effect in the United
States.
Grantor Trust: Empire Funding Grantor Trust 1998-2, formed pursuant to the
Grantor Trust Agreement.
Grantor Trust Agreement: The Grantor Trust Agreement dated as of June 1,
1998, among PaineWebber Mortgage Acceptance Corporation IV, as Depositor, Empire
Funding and the Grantor Trustee.
Grantor Trust Certificate: The trust certificate issued by the Grantor
Trust evidencing an undivided beneficial ownership interest of 100% of the
Grantor Trust.
Grantor Trust Holder: Any holder of the Grantor Trust Certificate.
Grantor Trustee: U.S. Bank National Association, a national banking
association, as Grantor Trustee under the Grantor Trust Agreement, or any
successor Grantor Trustee hereunder.
Grantor Trustee Fee: As to any Payment Date, $0.00.
Grantor Trustee's Home Loan File: As defined in Section 2.05(a) of the
Grantor Trust Agreement.
Home Loan: Any Debt Consolidation Loan or Combination Loan that is included
in the Home Loan Pool. As applicable, a Home Loan shall be deemed to refer to
the related Debt Instrument, the Mortgage (except with respect to any Unsecured
Home Loans) and any related Foreclosure Property, and shall include, among other
items, all Monthly Payments with a Due Date on or after the Cut-Off Date, except
that the Transferor shall retain 73% of the interest collected thereon during
the first Due Period.
Home Loan File: As to each Home Loan, the Grantor Trustee's Home Loan File
and the Servicer's Home Loan File.
Home Loan Interest Rate: The fixed annual rate of interest borne by a Debt
Instrument, as shown on the related Home Loan Schedule as the same may be
modified by the Servicer in accordance with Section 4.01(c) or 4.10 hereof.
Home Loan Pool: The pool of Home Loans conveyed to the Grantor Trustee
pursuant to the Grantor Trust Agreement on the Closing Date, together with the
rights and obligations of a holder thereof, and the payments thereon and
proceeds therefrom received after the applicable Cut-Off Date, as identified on
the Home Loan Schedule annexed hereto as Exhibit A.
Home Loan Purchase Agreement: The Home Loan Purchase Agreement between the
Transferor and the Depositor, dated as of June 1, 1998.
Home Loan Schedule: The schedule of Home Loans set forth on Exhibit A
attached hereto, as amended or supplemented from time to time specifying, with
respect to each Home Loan, the following information: (i) the Transferor's Home
Loan number; (ii) the Obligor's name and the street address; (iii) the current
principal balance; (iv) the original principal amount with respect to any Home
Loan originated by the Transferor and the principal amount purchased by the
Transferor with respect to a Home Loan acquired by the Transferor subsequent to
its origination; (v) any related Combined Loan-to-Value Ratio as of the date of
the origination of the related Home Loan; (vi) the paid through date; (vii) the
Home Loan Interest Rate; (viii) the final maturity date under the Debt
Instrument; (ix) the Monthly Payment; (x) the occupancy status of the Mortgaged
Property, if any; (xi) the lien priority of the Mortgage, if any; (xii) the
original term of the Debt Instrument; (xiii) the Credit Score, if applicable;
and (xiv) the debt to income ratio of the related Obligor.
Indenture: The Indenture, dated as of June 1, 1998, between the Issuer and
the Indenture Trustee.
Indenture Trustee: U.S. Bank National Association, a national banking
association, as Indenture Trustee under the Indenture and this Agreement acting
on behalf of the Noteholders, or any successor indenture trustee under the
Indenture or this Agreement.
Indenture Trustee Fee: As to any Payment Date, the greater of (a)
one-twelfth of the Indenture Trustee Fee Rate times the Pool Principal Balance
as of the opening of business on the first day of the calendar month preceding
the calendar month of such Payment Date (or, with respect to the first Payment
Date, the Original Pool Principal Balance) and (b) one-twelfth of $10,000.
Indenture Trustee Fee Rate: 0.0065% per annum.
Independent: When used with respect to any specified Person, such Person
(i) is in fact independent of the Transferor, the Servicer, the Depositor or any
of their respective Affiliates, (ii) does not have any direct financial interest
in, or any material indirect financial interest in, any of the Transferor, the
Servicer, the Depositor or any of their respective Affiliates and (iii) is not
connected with any of the Transferor, the Servicer, the Depositor or any of
their respective Affiliates, as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Transferor, the
Servicer, the Depositor or any of their respective Affiliates merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Transferor, the Servicer, the Depositor or any of their respective
Affiliates, as the case may be.
Independent Accountants: A firm of nationally recognized certified public
accountants which is Independent.
Insurance Policies: With respect to any Mortgaged Property, any related
insurance policy.
Insurance Proceeds: With respect to any Mortgaged Property, all amounts
collected in respect of Insurance Policies and not required to be applied to the
restoration of any such Mortgaged Property or paid to the related Obligor.
LIBOR: With respect to each Accrual Period (other than the initial Accrual
Period) and each Class of LIBOR Notes, the rate for United States dollar
deposits for one month that appears on the Telerate Screen Page 3750 as of 11:00
a.m., London time, on the related LIBOR Determination Date. If such rate does
not appear on such page (or such other page as may replace that page on that
service, or if such service is no longer offered, such other service for
displaying LIBOR or comparable rates as may be reasonably selected by the
Indenture Trustee), LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Indenture
Trustee and no Reference Bank Rate is available, LIBOR will be LIBOR applicable
to the preceding Accrual Period. LIBOR for the initial Accrual Period will be
5.64844% per annum.
LIBOR Business Day: Any day on which banks are open for dealing in foreign
currency and exchange in London and New York City.
LIBOR Determination Date: With respect to each Accrual Period (other than
the first Accrual Period), the second LIBOR Business Day before the first day of
such Accrual Period, as determined by the Indenture Trustee.
LIBOR Notes: The Class A-1 Notes.
Liquidated Home Loan: With respect to any date of determination, any
Foreclosure Property or any Home Loan in respect of which a Monthly Payment is
in excess of 30 days past due and as to which the Servicer has determined that
all amounts which it reasonably and in good faith expects to collect have been
recovered from or on account of such Home Loan or the related Foreclosure
Property; provided, however, that in any event such Home Loan or the related
Foreclosure Property shall be deemed uncollectible and therefore be a Liquidated
Home Loan upon the earliest to occur of: (i) the liquidation or disposition of
such Home Loan or the related Foreclosure Property; (ii) the determination by
the Servicer in accordance with the Accepted Servicing Procedures that there is
no reasonable likelihood of (A) recovering an economically significant amount
attributable to the outstanding interest and principal owing on such Home Loan
from either the related Mortgaged Property or the Obligor, in excess of (B) the
costs and expenses to obtain such recovery (including without limitation any
Servicing Advances and, if applicable, the outstanding indebtedness of all
Superior Liens), and in relation to (C) the expected timing of such recovery
therefrom, or (iii) the date on which any portion of a Monthly Payment on any
Home Loan is in excess of 180 days past due.
Liquidation Proceeds: With respect to a Liquidated Home Loan, any cash
amounts received in connection with the liquidation or disposition of such
Liquidated Home Loan, whether through trustee's sale, foreclosure sale or other
disposition, any cash amounts received in connection with the management of the
Foreclosure Properties from Foreclosed Home Loans and any other amounts required
to be deposited in the Collection Account pursuant to Section 5.01(b) hereof, in
each case other than Insurance Proceeds and Released Mortgaged Property
Proceeds.
Loss Reimbursement Deficiency: With respect to any Payment Date and the
Class M-1 Notes, Class M-2 Notes, Class B-1 Notes or the Class B-2 Notes, the
amount of Allocable Loss Amounts applied to the reduction of the Class Principal
Balance of such Class and not reimbursed pursuant to Section 5.01 hereof as of
such Payment Date plus interest accrued on the unreimbursed portion thereof at
the applicable Note Interest Rate through the end of the Due Period immediately
preceding such Payment Date; provided, however, that no interest shall accrue on
any amount of such accrued and unpaid interest.
Majority Noteholders: Until such time as the sum of the Class Principal
Balances of all Classes of Notes has been reduced to zero, the holder or holders
of in excess of 50% of the Class Principal Balance of all Classes of Notes.
Majority Residual Interestholders: The holder or holders of in excess of
50% of the Residual Interest.
Maturity Date means, with respect to each Class of Notes, the applicable
maturity date set forth below:
Class Maturity Date
----- -------------
A-1 May 25, 2008
A-2 May 25, 2012
A-3 November 25, 2013
A-4 March 25, 2019
A-5 June 25, 2024
A-6 June 25, 2024
A-IO June 25, 2024
M-1 June 25, 2024
M-2 June 25, 2024
B-1 June 25, 2024
B-2 June 25, 2024
Mezzanine Noteholders' Interest Carry-Forward Amount: With respect to any
Payment Date, the excess, if any, of (A) the Mezzanine Noteholders' Monthly
Interest Payment Amount for the preceding Payment Date plus any outstanding
Mezzanine Noteholders' Interest Carry-Forward Amount for preceding Payment
Dates, over (B) the amount in respect of interest that is actually deposited in
the Note Payment Account on such preceding Payment Date net of the Senior
Noteholders' Interest Payment Amount for such preceding Payment Date; it being
understood that the interest of the Class M-1 Noteholders in the Mezzanine
Noteholders' Interest Carry-Forward Amount is senior to that of the Class M-2
Noteholders.
Mezzanine Noteholders' Interest Payment Amount: With respect to any Payment
Date, the sum of the Mezzanine Noteholders' Monthly Interest Payment Amount for
such Payment Date and the Mezzanine Noteholders' Interest Carry-Forward Amount
for such Payment Date.
Mezzanine Noteholders' Monthly Interest Payment Amount: With respect to
each Payment Date and the Classes of Mezzanine Notes, the interest accrued
during the related Accrual Period at the respective Note Interest Rates on the
respective Class Principal Balances of such Classes immediately preceding such
Payment Date (or, in the case of the first Payment Date, on the Closing Date)
after giving effect to all payments of principal to the holders of such Classes
of Notes on or prior to such preceding Payment Date.
Mezzanine Notes: The Class M-1 Notes and Class M-2 Notes.
Monthly Cut-Off Date: The last day of any calendar month and, with respect
to any Payment Date, the last day of the calendar month immediately preceding
such Payment Date.
Monthly Payment: The scheduled monthly payment of principal and/or interest
required to be made by an Obligor on the related Home Loan, as set forth in the
related Debt Instrument.
Mortgage: The mortgage, deed of trust or other security instrument creating
a lien in accordance with applicable law on a Mortgaged Property to secure the
Debt Instrument which evidences a Home Loan (other than any Unsecured Home
Loan).
Mortgaged Property: The real property encumbered by the Mortgage which
secures the Debt Instrument evidencing a Home Loan (other than an Unsecured Home
Loan).
Mortgaged Property States: Each state in which any Mortgaged Property
securing a Home Loan is located as set forth in the Home Loan Schedule.
Multiplier: The Multiplier will initially equal 1.7 and may from time to
time be permanently modified to a lesser amount (including zero) in the event
that the Issuer shall have delivered to the Indenture Trustee written
confirmation from each Rating Agency that the rating assigned by it to each
Class of Notes which it originally rated will not be downgraded or withdrawn as
a result of such reduction.
Net Delinquency Calculation Amount: With respect to any Payment Date, the
excess, if any, of (x) the product of the Multiplier and the Six-Month Rolling
Delinquency Average over (y) the aggregate of the amounts of Excess Spread for
the three preceding Payment Dates.
Net Liquidation Proceeds: With respect to any Payment Date, Liquidation
Proceeds received during the related Due Period, net of any reimbursements to
the Servicer made from such amounts for the following: (i) any unreimbursed
Servicing Compensation; (ii) Servicing Advances (including Nonrecoverable
Servicing Advances) made and any other fees and expenses paid in connection with
the foreclosure, conservation and liquidation of the related Liquidated Home
Loans or Foreclosure Properties pursuant to Sections 4.10 or 4.11 hereof; and
(iii) the accrued interest on all reimbursements under the preceding clause (ii)
from the date of the advance or payment by the Servicer to the date of
reimbursement and at the rate equal to the Servicer's cost of funds.
Net Loan Losses: With respect to any Defaulted Home Loan that is subject to
a modification pursuant to Section 4.10 hereof or pursuant to a legal proceeding
(including a Chapter 13 bankruptcy proceeding), an amount equal to the portion
of the Principal Balance, if any, released in connection with such modification.
Net Loan Rate: With respect to each Home Loan, the related Home Loan
Interest Rate, less the sum of (i) the Servicing Fee Rate and (ii) the Indenture
Trustee Fee Rate.
Net Weighted Average Rate: With respect to any Payment Date, a rate per
annum equal to the weighted average (by principal balance) of the Home Loan
Interest Rates as of the first day of the related Due Period less 1.008%.
Nonrecoverable Servicing Advance: With respect to any Defaulted Home Loan
or any Foreclosure Property, any Servicing Advance previously made and not
reimbursed from late or other fee collections, Liquidation Proceeds, Insurance
Proceeds or the Released Mortgaged Property Proceeds following the liquidation
or disposition of such Defaulted Home Loan or Foreclosure Property, as evidenced
by an Officer's Certificate delivered to the Indenture Trustee.
Note: Any of the Senior Notes, the Mezzanine Notes or the Subordinate
Notes.
Note Interest Rate: With respect to each Class of Notes, the annual rate of
interest payable to the holders of such Class of Notes, as specified below:
Class Note Interest Rate(1)
----- ---------------------
Class A-1 Floating Rate (2)
Class A-2 6.28%
Class A-3 6.39%
Class A-4 6.53%
Class A-5 6.96%
Class A-6 6.72%
Class A-IO 5.09%
Class M-1 6.99%
Class M-2 7.43%
Class B-1 9.03%
Class B-2 9.21%
(1) Commencing on the first day of the Accrual Period in which the
Clean-up Call Date occurs, the Note Interest Rate shall be
increased by 0.50% per annum.
(2) Interest will accrue on the Class A-1 Notes during each
Accrual Period at a per annum interest rate equal to LIBOR for
the related LIBOR Determination Date plus 0.06%, subject to a
maximum rate equal to 12.0%. The Note Interest Rate applicable
to the Class A-1 Notes for the initial Accrual Period will be
approximately 5.70844% per annum.
Note Payment Account: The Eligible Account established and maintained
pursuant to Section 5.01(a)(2) hereof.
Note Redemption Amount: As of any date of determination, an amount without
duplication equal to the sum of (i) the then outstanding Class Principal
Balances of the Classes of Notes (other than the Class A-IO Notes) plus all
accrued and unpaid interest thereon, (ii) all accrued and unpaid interest on the
Class Notional Balance of the Class A-IO Notes, (iii) all accrued and unpaid
interest on the Class A-IO Notes as a result of a reduction of the Class
Principal Balance of the Class A-IO Notes occurring prior to August 25 2000,
(iv) any Trust Fees and Expenses due and unpaid on such date and (v) any
Servicing Advance Reimbursement Amount.
Noteholder: A holder of a Note.
Noteholders' Interest Payment Amount: The sum of the Senior Noteholders'
Interest Payment Amount, the Mezzanine Noteholders' Interest Payment Amount and
the Subordinate Noteholders' Interest Payment Amount.
Obligor: Each obligor on a Debt Instrument.
Officer's Certificate: A certificate delivered to the Indenture Trustee or
the Issuer signed by the President or a Vice President or an Assistant Vice
President of the Depositor, the Servicer or the Transferor, in each case, as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel (who is acceptable to the
Rating Agencies), who may be employed by the Transferor, the Servicer, the
Depositor or any of their respective Affiliates.
Original Class Principal Balance: With respect to the Classes of Notes, as
follows: Class A-1: $57,666,000; Class A-2: $56,904,000; Class A-3: $23,089,000;
Class A-4: $36,212,000; Class A-5: $22,516,500; Class A-6: $19,500,000; Class
M-1: $30,300,000; Class M-2: $21,967,500; Class B-1: $25,755,000; and Class B-2:
$9,090,000. The Class A-IO will not have an Original Class Principal Balance.
Original Pool Principal Balance: $300,000,152 which is the Pool Principal
Balance as of the Cut-Off Date.
Outstanding: As defined in the Indenture.
Overcollateralization Amount: With respect to any Payment Date after the
initial Undercollateralization Amount has been reduced to zero, the amount equal
to the excess of (A) the Pool Principal Balance as of the end of the preceding
Due Period, over (B) the aggregate of the Class Principal Balances of the Notes
(after giving effect to the payments made on such date pursuant to Section
5.01(d) hereof). Prior to the reduction of the initial Undercollateralization
Amount to zero, the Overcollateralization Amount shall be zero.
Overcollateralization Deficiency Amount: With respect to any Payment Date,
the excess, if any, of the Overcollateralization Target Amount over the
Overcollateralization Amount (after giving effect to all prior payments on the
Classes of Notes and to any prior distribution on the Residual Interest
Certificates on such Payment Date pursuant to Section 5.01(d) hereof).
Overcollateralization Target Amount: (I) With respect to any Payment Date
occurring prior to the Stepdown Date, an amount equal to the greater of (x) 3.5%
of the Original Pool Principal Balance and (y) the Net Delinquency Calculation
Amount; and (II) with respect to any other Payment Date, an amount equal to the
greater of (x) 7.0% of the Pool Principal Balance as of the end of the related
Due Period and (y) the Net Delinquency Calculation Amount; provided, however,
that the Overcollateralization Target Amount shall in no event be less than
0.50% of the Original Pool Principal Balance or greater than the sum of the
aggregate Class Principal Balances of all Classes of Notes, provided, however,
if the sum of the aggregate Class Principal Balances of all Classes of Notes is
less than 0.50% of the Original Pool Principal Balance, the
Overcollateralization Target Amount may be less than 0.50% of the Original Pool
Principal Balance but shall in no event be greater than the sum of the aggregate
Class Principal Balances of all Classes of Notes.
Owner Trust: The Issuer.
Owner Trust Agreement: The Owner Trust Agreement dated as of June 1, 1998,
among the Depositor, the Company, the Owner Trustee and U.S. Bank National
Association.
Owner Trust Estate: The assets subject to this Agreement, the Owner Trust
Agreement and the Indenture and assigned to the Issuer, which assets consist of:
(i) the contribution of $1 referred to in Section 2.5 of the Owner Trust
Agreement, (ii) the Grantor Trust Certificate, (iii) all payments on and
distributions in respect of the Grantor Trust Certificate, (iv) all right, title
and interest of the Depositor in and to the Collection Account (such account was
collaterally assigned to the Depositor by the Grantor Trustee in connection with
the conveyance of the Grantor Trust Certificate to the Depositor pursuant to the
Grantor Trust Agreement), (v) such assets and funds as are from time to time
deposited in the Trust Accounts, including amounts on deposit in such accounts
which are invested in Permitted Investments, and (vi) all proceeds of every kind
and nature whatsoever in respect of any or all of the foregoing.
Owner Trustee: Wilmington Trust Company, as owner trustee under the Owner
Trust Agreement, and any successor owner trustee under the Owner Trust
Agreement.
Owner Trustee Fee: The annual fee of $4,000 in equal monthly installments
to the Servicer which shall in turn pay such $4,000 to the Owner Trustee on the
Payment Date occurring in June each year during the term of this Agreement
commencing in June 1999; provided, however, that the initial Owner Trustee fee
shall be paid by the Transferor on the Closing Date.
Ownership Interest: As to any Note, any ownership or security interest in
such Note, including any interest in such Note as the holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
Payment Date: The 25th day of any month or if such 25th day is not a
Business Day, the first Business Day immediately following such day, commencing
in July 1998.
Payment Statement: As defined in Section 6.01 hereof.
Percentage Interest: As defined in the Owner Trust Agreement.
Permitted Investments: Each of the following:
(1) obligations of, or guaranteed as to principal and interest
by, the United States or any agency or instrumentality thereof when
such obligations are backed by the full faith and credit of the United
States;
(2) a repurchase agreement that satisfies the following
criteria: (A) it must be between the Indenture Trustee and either (x)
primary dealers on the Federal Reserve reporting dealer list which are
rated one of the two highest ratings for long-term unsecured debt
obligations by each Rating Agency or (y) banks rated in the highest
categories for long-term unsecured debt obligations by each Rating
Agency; and (B) it must be in writing and include the following terms:
(a) the securities acceptable for transfer are either (i) direct U.S.
government obligations or (ii) obligations of a federal agency that are
backed by the full faith and credit of the U.S. government or by FNMA
or FHLMC; (b) a term no greater than 60 days for any repurchase
transaction; (c) the collateral must be delivered to the Indenture
Trustee or a third party custodian acting as agent for the Indenture
Trustee by appropriate book entries and confirmation statements, and
must have been delivered before or simultaneously with payment (i.e.,
perfection by possession of certificated securities); and (d) the
securities sold thereunder must be valued weekly, marked-to-market at
current market price plus accrued interest and the value of the
collateral must be equal to at least 104% of the amount of cash
transferred by the Indenture Trustee under the repurchase agreement
and, if the value of the securities held as collateral declines to an
amount below 104% of the cash transferred by the Indenture Trustee plus
accrued interest (i.e., a margin call), then additional cash and/or
acceptable securities must be transferred to the Indenture Trustee to
satisfy such margin call; provided, however, that if the securities
used as collateral are obligations of FNMA or FHLMC, then the value of
the securities held as collateral must equal at least 105% of the cash
transferred by the Indenture Trustee under such repurchase agreement;
(3) certificates of deposit, time deposits and bankers
acceptances of any United States depository institution or trust
company incorporated under the laws of the United States or any state,
including the Indenture Trustee; provided, however, that the debt
obligations of such depository institution or trust company at the date
of the acquisition thereof have been rated by each Rating Agency in the
highest long-term rating categories;
(4) deposits, including deposits with the Indenture Trustee,
which are fully insured by the Bank Insurance Fund or the Savings
Association Insurance Fund of the FDIC, as the case may be;
(5) commercial paper of any corporation incorporated under the
laws of the United States or any state thereof, including corporate
Affiliates of the Indenture Trustee, which at the date of acquisition
is rated by each Rating Agency in its highest short-term rating
category and which has an original maturity of not more than 365 days;
(6) debt obligations rated by each Rating Agency at the time
at which the investment is made in its highest long-term rating
category (or those investments specified in (3) above with depository
institutions which have debt obligations rated by each Rating Agency in
the highest long-term rating categories);
(7) money market funds which are rated by each Rating Agency
at the time at which the investment is made in its highest long-term
rating category, any such money market funds which provide for demand
withdrawals being conclusively deemed to satisfy any maturity
requirements for Permitted Investments set forth in this Agreement; or
(8) any other demand, money market or time deposit obligation,
security or investment as may be acceptable to each Rating Agency at
the time at which the investment is made;
provided, however, that no instrument described in the foregoing subparagraphs
shall evidence either the right to receive (a) only interest with respect to the
obligations underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument where the interest
and principal payments with respect to such instrument provide a yield to
maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations; and provided, further, that no instrument described in
the foregoing subparagraphs may be purchased at a price greater than par if such
instrument may be prepaid or called at a price less than its purchase price
prior to stated maturity.
Each reference in this definition of "Permitted Investments" to the Rating
Agency shall be construed, in the case of each subparagraph above referring to
each Rating Agency, as a reference to each of S&P, Fitch and DCR.
Person: Any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, estate, national
banking association, unincorporated organization or government or any agency or
political subdivision thereof.
Physical Property: As defined in the definition of "Delivery" above.
Pool Principal Balance: With respect to any date of determination, the
aggregate Principal Balances of the Home Loans as of the end of the preceding
Due Period; provided, however, that the Pool Principal Balance on any Payment
Date on which the Termination Price is to be paid to Noteholders will be deemed
to have been equal to zero as of such date.
Principal Balance: With respect to any Home Loan or related Foreclosure
Property, (i) at the Cut-Off Date, the outstanding unpaid principal balance of
the Home Loan as of the Cut-Off Date and (ii) with respect to any date of
determination, the outstanding unpaid principal balance of the Home Loan as of
the last day of the preceding Due Period (after giving effect to all payments
received thereon and the allocation of any Net Loan Losses with respect thereto
for a Defaulted Home Loan which relates to such Due Period), without giving
effect to amounts received in respect of such Home Loan or related Foreclosure
Property after such Due Period; provided, however, that any Liquidated Home Loan
shall have a Principal Balance of zero.
Principal Prepayment: With respect to any Home Loan and any Due Period, any
principal amount received on a Home Loan in excess of the principal of the
Monthly Payment due in such Due Period.
Private Placement Memorandum: The Private Placement Memorandum to be
prepared by the Depositor in connection with the Class B-2 Notes.
Prospectus: The Depositor's final Prospectus dated May 22, 1998 as
supplemented by the Prospectus Supplement dated June 18, 1998.
Prospectus Supplement: The Prospectus Supplement dated June 18, 1998 to be
prepared by the Depositor in connection with the issuance and sale of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-IO, Class
M-1, Class M-2 and Class B-1 Notes.
Purchase Price: With respect to a Defective Home Loan, the Principal
Balance thereof as of the date of purchase, plus all accrued and unpaid interest
on such Defective Home Loan to and including the date of repurchase computed at
the applicable Home Loan Interest Rate, plus the amount of any unreimbursed
Servicing Advances made by the Servicer with respect to such Defective Home Loan
(after deducting therefrom any amounts received in respect of such repurchased
Defective Home Loan and being held in the Collection Account for future
distribution to the extent such amounts represent recoveries of principal not
yet applied to reduce the related Principal Balance or interest (net of the
Servicing Fee) for the period from and after the date of repurchase).
PWRES: Paine Webber Real Estate Securities Inc., a Delaware corporation.
Qualified Substitute Home Loan: A home loan or home loans substituted for a
Deleted Home Loan pursuant to Section 2.06 of the Grantor Trust Agreement or
Section 3.05 hereof, which (i) has or have an interest rate or rates of (a) not
more than 0.50 percentage points less than the Home Loan Interest Rate for the
Deleted Home Loan, and (b) not more than 2.0 percentage points greater than the
Home Loan Interest Rate for the Deleted Home Loan, (ii) matures or mature not
more than one year than, and not more than one year earlier, than the maturity
date of Deleted Home Loan, has a maturity date no later than June 2023 and an
original term to maturity of less than or equal to 25 years, (iii) has or have a
principal balance or principal balances (after application of all payments
received on or prior to the date of substitution) equal to or less than the
Principal Balance or Balances of the Deleted Home Loan or Loans as of such date,
(iv) has a Credit Score not less than the Credit Score of the Deleted Home Loan,
(v) has or have a lien priority equal or superior to that of the Deleted Home
Loan or Loans, (vi) has or have a borrower or borrowers with a debt-to-income
ratio no higher than the debt-to-income ratio of the Obligor with respect to the
Deleted Loan, and (vii) complies or comply as of the date of substitution with
each representation and warranty set forth in Section 3.04 hereof and is or are
not more than 29 days delinquent as of the date of substitution for such Deleted
Home Loan or Loans. For purposes of determining whether multiple mortgage loans
proposed to be substituted for one or more Deleted Home Loans pursuant to
Section 2.06 of the Grantor Trust Agreement or Section 3.05 hereof are in fact
"Qualified Substitute Home Loans" as provided above, the criteria specified in
clauses (i), (iv) and (vi) above may be considered on an aggregate or weighted
average basis, rather than on a loan-by-loan basis (i.e., so long as the
weighted average Home Loan Interest Rate of any loans proposed to be substituted
is not more than 0.50 percentage points less than the Home Loan Interest Rate
for the designated Deleted Home Loan or Loans and not more than two percentage
points greater than the Home Loan Interest Rate for the designated Deleted Home
Loan or Loans, the requirements of clause (i) above would be deemed satisfied).
Rating Agencies: S&P, Fitch and DCR. If no such organization or successor
is any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable person designated by the
Servicer, notice of which designation shall have been given to the Indenture
Trustee and the Issuer.
Ratings: The ratings initially assigned to the Notes by the Rating
Agencies, as evidenced by letters from the Rating Agencies.
Record Date: With respect to each Payment Date, the close of business on
the last Business Day of the month immediately preceding the month in which such
Payment Date occurs.
Reference Bank Rate: With respect to any Accrual Period, the arithmetic
mean (rounded upwards, if necessary, to the nearest one sixteenth of a percent)
of the offered rates for United States dollar deposits for one month that are
offered by the Reference Banks as of 11:00 a.m., New York City time, on the
second LIBOR Business Day prior to the first day of such Accrual Period to prime
banks in the London interbank market for a period of one month in amounts
approximately equal to the outstanding Class Principal Balance of the Class A-1
Notes, provided that at least two such Reference Banks provide such rate. If
fewer than two offered rates appear, the Reference Bank Rate will be arithmetic
mean of the rates quoted by one or more major banks in New York City, selected
by the Indenture Trustee, as of 11:00 a.m., New York City time, on such date for
loans in U.S. Dollars to leading European Banks for a period of one month in
amounts approximately equal to the outstanding Class Principal Balance of the
Class A-1 Notes. If no such quotation can be obtained, the Reference Bank Rate
will be the Reference Bank Rate applicable to the preceding Accrual Period.
Reference Banks: Three money center banks selected by the Indenture
Trustee.
Regular Payment Amount: With respect to any Payment Date, the lesser of (a)
the Available Payment Amount and (b) the sum of (i) the Noteholders' Interest
Payment Amount and (ii) the Regular Principal Payment Amount.
Regular Principal Payment Amount: On each Payment Date, an amount equal to
the lesser of:
(A) the aggregate of the Class Principal Balances of the
Classes of Notes immediately prior to such Payment Date; and
(B) the sum of (i) each scheduled payment of principal
collected by the Servicer in the related Due Period, (ii) all Principal
Prepayments applied by the Servicer during such related Due Period,
(iii) the principal portion of all Net Liquidation Proceeds, Insurance
Proceeds and Released Mortgaged Property Proceeds received during the
related Due Period, (iv) that portion of the Purchase Price of any
repurchased Home Loan which represents principal received prior to the
related Determination Date, (v) the principal portion of any
Substitution Adjustments required to be deposited in the Collection
Account as of the related Determination Date and (vi) on the Payment
Date on which the Issuer and the Grantor Trust are to be terminated
pursuant to Section 11.02 hereof, the Termination Price (net of any
accrued and unpaid interest, Trust Fees and Expenses due and unpaid on
such date and Servicing Advance Reimbursement Amount).
Released Mortgaged Property Proceeds: With respect to any Home Loan (other
than an Unsecured Home Loan), proceeds received by the Servicer in connection
with (i) a taking of an entire Mortgaged Property by exercise of the power of
eminent domain or condemnation or (ii) any release of part of the Mortgaged
Property from the lien of the related Mortgage, whether by partial condemnation,
sale or otherwise; which proceeds in either case are not released to the Obligor
in accordance with applicable law, Accepted Servicing Procedures and this
Agreement.
Residual Interest: The meaning assigned thereto in the Owner Trust
Agreement.
Residual Interest Certificate: The meaning assigned thereto in the Owner
Trust Agreement.
Responsible Officer: When used with respect to the Indenture Trustee or
Grantor Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee or Grantor Trustee, as the case may be, including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer of
the Indenture Trustee or Grantor Trustee, as the case may be, customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to the Issuer,
any officer in the Corporate Trust Administration Department of the Owner
Trustee with direct responsibility for the administration of the Owner Trust
Agreement and this Agreement on behalf of the Issuer. When used with respect to
the Depositor, the Transferor, the Servicer or any Custodian, the President or
any Vice President, Assistant Vice President, or any Secretary or Assistant
Secretary.
S&P: Standard and Poor's Ratings Services, or any successor thereto.
Securities: The Notes or Residual Interest Certificates.
Securityholder: Any Noteholder or Certificateholder.
Senior Noteholders' Interest Carry-Forward Amount: With respect to any
Payment Date, the excess, if any, of (A) the Senior Noteholders' Monthly
Interest Payment Amount for the preceding Payment Date plus any outstanding
Senior Noteholders' Interest Carry-Forward Amount for preceding Payment Dates,
over (B) the amount in respect of interest that is actually deposited in the
Note Payment Account on such preceding Payment Date.
Senior Noteholders' Interest Payment Amount: With respect to any Payment
Date, the sum of the Senior Noteholders' Monthly Interest Payment Amount for
such Payment Date and the Senior Noteholders' Interest Carry-Forward Amount for
such Payment Date.
Senior Noteholders' Monthly Interest Payment Amount: With respect to each
Payment Date and the Classes of Class A Notes, the interest accrued during the
related Accrual Period at the respective Note Interest Rates on the respective
Class Principal Balances of such Classes immediately preceding such Payment Date
(or, in the case of the first Payment Date, beginning on the Closing Date) after
giving effect to all payments of principal to the holders of such Classes of
Notes on or prior to such preceding Payment Date and, with respect to each
Payment Date and each Class A-IO Note, the interest accrued during the related
Accrual Period at the respective Note Interest Rate on the applicable Class
Notional Balance of such Class immediately preceding such Payment Date (or, in
the case of the first Payment Date, beginning on the Closing Date) after giving
effect to all payments of principal to the holders of the other Classes of Notes
on or prior to such preceding Payment Date.
Senior Notes: The Class A Notes.
Senior Optimal Principal Balance: With respect to any Payment Date prior to
the Stepdown Date, zero; with respect to any other Payment Date, an amount equal
to the Pool Principal Balance as of the related Determination Date minus the
greater of (a) the sum of (1) 58.075 % of the Pool Principal Balance as of the
related Determination Date and (2) the Overcollateralization Target Amount for
such Payment Date (without giving effect to the proviso in the definition
thereof) and (b) 0.50% of the Original Pool Principal Balance; provided,
however, that such amount shall never be less than zero or greater than the sum
of the Original Class Principal Balances of the Notes.
Series or Series 1998-2: Empire Funding Home Loan Asset Backed Notes,
Series 1998-2.
Servicer: Empire Funding, in its capacity as the servicer hereunder, or any
successor appointed as herein provided.
Servicer Termination Event: The termination of the Servicer pursuant to
Section 10.01(b) hereof.
Servicer's Fiscal Year: January 1st through December 31st of each year.
Servicer's Home Loan Files: In respect of each Home Loan, all documents
customarily included in the Servicer's loan file for the related type of Home
Loan as specifically set forth in Section 2.05(b) of the Grantor Trust
Agreement.
Servicer's Monthly Remittance Report: A report prepared and computed by the
Servicer in substantially the form of Exhibit B attached hereto.
Servicing Advance Reimbursement Amount: With respect to any date of
determination and with respect to the receipt of proceeds from or the
liquidation of a Home Loan for which any Servicing Advances (plus accrued
interest thereon from the date of such advance to the date of reimbursement and
at the rate equal to the Servicer's cost of funds) have been made, the amount of
any such Servicing Advances that have not been reimbursed as of such date,
including Nonrecoverable Servicing Advances.
Servicing Advances: Subject to Section 4.01(b) hereof, all reasonable,
customary and necessary "out of pocket" costs and expenses advanced or paid by
the Servicer with respect to the Home Loans in accordance with the performance
by the Servicer of its servicing obligations hereunder, including, but not
limited to, the costs and expenses for (i) the preservation, restoration and
protection of any related Mortgaged Property, including without limitation
advances in respect of real estate taxes and assessments, (ii) any collection,
enforcement or judicial proceedings, including without limitation foreclosures,
collections and liquidations pursuant to Section 4.10 hereof, (iii) the
conservation, management and sale or other disposition of a Foreclosure Property
pursuant to Section 4.11 hereof, (iv) the preservation of the security for a
Home Loan if any lienholder under a Superior Lien has accelerated or intends to
accelerate the obligations secured by such Superior Lien pursuant to Section
4.10 hereof, and (v) the satisfaction, cancellation, release or discharge of any
Home Loan or any related Mortgage in accordance with this Agreement; provided,
however, that such Servicing Advances (plus accrued interest thereon from the
date of such advance to the date of reimbursement and at the rate equal to the
Servicer's cost of funds) are reimbursable to the Servicer out of the expected
late collections, Liquidation Proceeds, Insurance Proceeds or Released Mortgaged
Property Proceeds for the related Home Loan, Obligor or Mortgaged Property.
Servicing Compensation: The Servicing Fee and other amounts to which the
Servicer is entitled pursuant to Section 7.03 hereof.
Servicing Fee: As to each Home Loan (including any Home Loan that has been
foreclosed and has become a Foreclosure Property, but excluding any Liquidated
Home Loan), the fee payable monthly to the Servicer on each Payment Date, which
shall be the product of 1.00% (100 basis points) and the Principal Balance of
such Home Loan as of the beginning of the immediately preceding Due Period,
divided by 12. The Servicing Fee includes any servicing fees owed or payable to
any Subservicer, which fees shall be paid from the Servicing Fee.
Servicing Officer: Any officer of the Servicer or Subservicer involved in,
or responsible for, the administration and servicing of the Home Loans whose
name and specimen signature appears on a list of servicing officers annexed to
an Officer's Certificate furnished by the Servicer or the Subservicer,
respectively, to the Grantor Trustee and the Indenture Trustee, on behalf of the
Noteholders, as such list may from time to time be amended.
Six-Month Rolling Delinquency Average: With respect to any Payment Date,
the average of the applicable 60-Day Delinquency Amounts for each of the six
immediately preceding Due Periods, where the 60-Day Delinquency Amount for any
Due Period is the aggregate of the Principal Balances of all Home Loans that are
60 or more days delinquent, in foreclosure or Foreclosure Property as of the end
of such Due Period, excluding any Liquidated Home Loan.
Stepdown Date: The first Payment Date occurring after June 2001, as to
which the aggregate of the Class Principal Balances of the Class A Notes after
giving effect to payments of principal as such Payment Date will be able to be
reduced on such Payment Date (such determination to be made by the Indenture
Trustee prior to giving effect to payment of principal on such Payment Date) to
the excess of:
(I) the Pool Principal Balance as of the related
Determination Date over
(II) the greater of
(a) the sum of
(1) 58.075% of the Pool Principal Balance
as of the related Determination Date
and
(2) the Overcollateralization Target
Amount for such Payment Date (such
amount to be calculated (x) without
giving effect to the proviso in the
definition thereof and (y) pursuant
only to clause (II) of the
definition thereof); and
(b) 0.50% of the Original Pool Principal Balance.
Subordinate Noteholders' Interest Carry-Forward Amount: With respect to any
Payment Date, the excess, if any, of (A) the Subordinate Noteholders' Monthly
Interest Payment Amount for the preceding Payment Date plus any outstanding
Subordinate Noteholders' Interest Carry-Forward Amount for preceding Payment
Dates, over (B) the amount in respect of interest that is actually deposited in
the Note Payment Account on such preceding Payment Date net of the Senior
Noteholders' Interest Payment Amount and the Mezzanine Noteholders' Interest
Payment Amount for such preceding Payment Date; it being understood that the
interest of the Class B-1 Noteholders in the Subordinate Noteholders' Interest
Carry-Forward Amount is senior to that of the Class B-2 Noteholders.
Subordinate Noteholders' Interest Payment Amount: With respect to any
Payment Date, the sum of the Subordinate Noteholders' Monthly Interest Payment
Amount for such Payment Date and the Subordinate Noteholders' Interest
Carry-Forward Amount for such Payment Date.
Subordinate Noteholders' Monthly Interest Payment Amount: With respect to
each Payment Date and the Classes of Subordinate Notes, the interest accrued
during the related Accrual Period at the respective Note Interest Rates on the
respective Class Principal Balances of such Classes immediately preceding such
Payment Date (or, in the case of the first Payment Date, on the Closing Date)
after giving effect to all payments of principal to the holders of such Classes
of Notes on or prior to such preceding Payment Date, and in the case of the
Class B-2 Notes, subject to reduction pursuant to Section 5.04(b).
Subordinate Notes: The Class B-1 Notes and Class B-2 Notes.
Subservicer: Any Person with which the Servicer has entered into a
Subservicing Agreement and which is an Eligible Servicer and satisfies any
requirements set forth in Section 4.06(a) hereof in respect of the
qualifications of a Subservicer.
Subservicing Account: An account established by a Subservicer pursuant to a
Subservicing Agreement, which account must be an Eligible Account.
Subservicing Agreement: Any agreement between the Servicer and any
Subservicer relating to subservicing and/or administration of any or all Home
Loans as provided in Section 4.06(a) hereof, copies of which shall be made
available, along with any modifications thereto, to the Issuer, the Grantor
Trustee and the Indenture Trustee.
Substitute Collateral: Any Substitute Collateral as defined in Section
4.10(c) hereof.
Substitution Adjustment: As to any date on which a substitution occurs
pursuant to Sections 2.06 of the Grantor Trust Agreement or Section 3.05 hereof,
the amount, if any, by which (a) the sum of the aggregate principal balance
(after application of principal payments received on or before the date of
substitution) of any Qualified Substitute Home Loans as of the date of
substitution, plus any accrued and unpaid interest thereon to the date of
substitution, is less than (b) the sum of the aggregate of the Principal
Balances, together with accrued and unpaid interest thereon to the date of
substitution, of the related Deleted Home Loans.
Superior Lien: With respect to any Home Loan (other than an Unsecured Home
Loan) which is secured by a lien other than a first priority lien, the mortgage
loan(s) having a superior priority lien on the related Mortgaged Property.
Termination Price: As of any date of determination, an amount without
duplication equal to the greater of (A) the Note Redemption Amount and (B) the
sum of (i) the Principal Balance of each Home Loan included in the Grantor Trust
as of the applicable Monthly Cut-Off Date; (ii) all unpaid interest accrued on
the Principal Balance of each such Home Loan at the related Home Loan Interest
Rate to such Monthly Cut-Off Date; and (iii) the aggregate fair market value of
each Foreclosure Property included in the Grantor Trust on such Monthly Cut-Off
Date, as determined by an Independent appraiser acceptable to the Indenture
Trustee as of a date not more than 30 days prior to such Monthly Cut-Off Date.
Transferor: Empire Funding, in its capacity as the transferor hereunder.
Treasury Regulations: Regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: The Issuer.
Trust Account Property: The Trust Accounts, all amounts and investments
held from time to time in the Trust Accounts and all proceeds of the foregoing.
Trust Accounts: The Note Payment Account, the Certificate Distribution
Account and the Collection Account.
Trust Fees and Expenses: As of each Payment Date, an amount equal to the
Servicing Compensation, the Indenture Trustee Fee, the Grantor Trustee Fee, the
Owner Trustee Fee and the Custodian Fee, if any.
UCC: The Uniform Commercial Code as in effect in the State of New York.
Undercollateralization Amount: With respect to any Payment Date, an amount
(not less than zero) equal to the excess, if any, of (a) the aggregate of the
Class Principal Balances of all Classes of Notes, after giving effect to
payments in respect of the Notes and the Residual Interest Certificates on such
Payment Date, over (b) the Pool Principal Balance as of the end of the preceding
Due Period. Notwithstanding the foregoing, on any date after the Payment Date on
which the Undercollateralization Amount is first reduced to zero, such amount
shall be deemed to be zero.
Unsecured Home Loan: Any Home Loan that is evidenced by the related Debt
Instrument and has been underwritten to substantially the same standards as a
secured Home Loan, except that such Home Loan is not secured by a Mortgage.
Section 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein have the
meanings assigned to them in the Indenture and the Owner Trust Agreement.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
GAAP. To the extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent with the meanings
of such terms under GAAP, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Article, Section, Schedule and
Exhibit references contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
CONVEYANCE OF THE GRANTOR TRUST CERTIFICATE
Section 2.01 Conveyance of the Grantor Trust Certificate.
(a) As of the Closing Date, in consideration of the Issuer's delivery of
the Notes and the Residual Interest Certificates to the Depositor or its
designee, upon the order of the Depositor, the Depositor, as of the Closing Date
and concurrently with the execution and delivery hereof, does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer, without recourse,
but subject to the other terms and provisions of this Agreement, all of the
right, title and interest of the Depositor in and to the Owner Trust Estate. The
foregoing sale, transfer, assignment, set over and conveyance does not, and is
not intended to, result in a creation or an assumption by the Issuer of any
obligation of the Depositor, the Transferor or any other person in connection
with the Owner Trust Estate or under any agreement or instrument relating
thereto except as specifically set forth herein.
(b) As of the Closing Date, the Issuer acknowledges the conveyance to it of
the Owner Trust Estate, including all right, title and interest of the Depositor
in and to the Owner Trust Estate, receipt of which is hereby acknowledged by the
Issuer. Concurrently with such delivery and in exchange therefor, the Issuer has
pledged the Owner Trust Estate to the Indenture Trustee, and the Indenture
Trustee, pursuant to the written instructions of the Issuer, has executed and
caused the Notes to be authenticated and delivered to the Depositor or its
designee, upon the order of the Issuer. In addition, concurrently with such
delivery and in exchange therefor, the Owner Trustee, pursuant to the
instructions of the Depositor, has executed (not in its individual capacity, but
solely as Owner Trustee on behalf of the Issuer) and caused the Residual
Interest Certificates to be authenticated and delivered to the Depositor or its
designee, upon the order of the Depositor.
Section 2.02 Ownership and Possession of Grantor Trust Certificate.
Upon the issuance of the Notes, the ownership of the Grantor Trust
Certificate shall be vested in the Indenture Trustee for the benefit of the
Securityholders.
Section 2.03 Books and Records; Principal Place of Business.
The sale of the Grantor Trust Certificate shall be reflected on the balance
sheets and other financial statements of the Depositor, as a sale of assets by
the Depositor under GAAP.
It is the intention of the parties hereto that the transfers and
assignments contemplated by this Agreement shall constitute a sale of the
Grantor Trust Certificate and the other property specified in Section 2.01(a)
hereof from the Depositor to the Issuer and such property shall not be property
of the Depositor. If the assignment and transfer of the Grantor Trust
Certificate and the other property specified in Section 2.01(a) hereof to the
Owner Trustee pursuant to this Agreement or the conveyance of the Grantor Trust
Certificate or any of such other property to the Owner Trustee is held or deemed
not to be a sale or is held or deemed to be a pledge of security for a loan, the
Depositor intends that the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement and that, in such event, (i)
the Depositor shall be deemed to have granted and does hereby grant to the Owner
Trustee a first priority security interest in the entire right, title and
interest of the Depositor in and to the Grantor Trust Certificate and all other
property conveyed to the Owner Trustee pursuant to Section 2.01 hereof and all
proceeds thereof and (ii) this Agreement shall constitute a security agreement
under applicable law. Within ten (10) days of the Closing Date, the Depositor
shall cause to be filed UCC-1 financing statements naming the Owner Trustee as
"secured parties" and describing the Grantor Trust Certificate being sold by the
Depositor to the Issuer with the office of the Secretary of State of the state
in which the Depositor is located.
Section 2.04 Delivery of Grantor Trust Certificate; Further Assurances.
(a) The Depositor shall, on the Closing Date, upon the order
of the Issuer, deliver or cause to be delivered, the Grantor Trust
Certificate registered in the name of U.S. Bank National Association,
as Indenture Trustee, to the Indenture Trustee for the benefit of the
Noteholders.
(b) The Depositor shall execute and deliver all such other
instruments, documents and certificates and take all such other actions
deemed necessary by the Owner Trustee in connection with, or in
furtherance of, the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Transferor, the
Servicer, the Grantor Trustee, the Indenture Trustee, the Owner Trustee and the
Noteholders that as of the Closing Date:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has, and had at all relevant times, full power to own its property,
to carry on its business as currently conducted, to enter into and
perform its obligations under this Agreement and to create the Owner
Trust pursuant to the Owner Trust Agreement;
(b) The execution and delivery of this Agreement by the
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Depositor is a party or which may be
applicable to the Depositor or any of its assets;
(c) The Depositor has the full power and authority to enter
into and consummate the transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Owner Trustee, the Indenture Trustee, the Grantor Trustee, the
Transferor and the Servicer, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against it in accordance with
the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(d) The Depositor is not in violation of, and the execution
and delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations
of the Depositor or its properties or materially and adversely affect
the performance of its duties hereunder;
(e) There are no actions or proceedings against, or
investigations of, the Depositor currently pending with regard to which
the Depositor has received service of process and no action or
proceeding against, or investigation of, the Depositor is, to the
knowledge of the Depositor, threatened or otherwise pending before any
court, administrative agency or other tribunal that (A) if determined
adversely, would prohibit its entering into this Agreement or render
the Notes invalid, (B) seek to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement
or (C) if determined adversely, would prohibit or materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement or the
Notes;
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the Notes, or for the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained
prior to the Closing Date;
(g) The Depositor is solvent, is able to pay its debts as they
become due and has capital sufficient to carry on its business and its
obligations hereunder; it will not be rendered insolvent by the
execution and delivery of this Agreement or its obligations hereunder;
no petition of bankruptcy (or similar insolvency proceeding) has been
filed by or against the Depositor prior to the date hereof;
(h) The Depositor did not sell (i) the Home Loans to the
Grantor Trustee or (ii) the Grantor Trust Certificate to the Issuer,
with any intent to hinder, delay or defraud any of its creditors; the
Depositor will not be rendered insolvent as a result of the sale of the
Home Loans to the Grantor Trustee and the sale of the Grantor Trust
Certificate to the Issuer;
(i) As of the Closing Date, the Depositor had good title to,
and was the sole beneficial owner of, the Grantor Trust Certificate and
had good and marketable title thereto, free and clear of any lien or
options in favor of, or claims of, any other Person, other than any
such lien released simultaneously with the sale contemplated herein,
and, immediately upon each transfer and assignment herein contemplated,
the Depositor will have delivered to the Issuer good title to, and the
Issuer will be the sole beneficial owner of, the Grantor Trust
Certificate free and clear of any lien or options in favor of, or
claims of, any other Person;
(j) The Grantor Trust Certificate has been validly issued, and
is fully paid and non-assessable and not subject to preemptive rights,
and the Grantor Trust Certificate has been offered, issued and sold in
compliance with all applicable laws and (A) there are no outstanding
rights, options, warrants or agreements for the purchase from, or sale
or issuance, in connection with the Grantor Trust Certificate; (B)
there are no agreements on the part of the Depositor to issue, sell or
distribute the Grantor Trust Certificate; and (C) the Depositor has no
obligation (contingent or otherwise) to purchase, redeem or otherwise
acquire any securities or any interest therein or to pay any dividend
or make any distribution in respect of the Grantor Trust Certificate.
(k) The Depositor acquired title to each of the Grantor Trust
Certificate in good faith, without notice of any adverse claim;
(l) No Officers' Certificate, statement, report or other
document prepared by the Depositor and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading; and
(m) The Depositor is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended.
Section 3.02 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Servicer, the
Indenture Trustee, the Owner Trustee, the Grantor Trustee, the Noteholders and
the Depositor that as of the Closing Date (except as otherwise specifically
provided herein):
(a) The Transferor is a corporation licensed as a mortgage
lender duly organized, validly existing and in good standing under the
laws of the State of Oklahoma and has and had at all relevant times,
full corporate power to originate or purchase the Home Loans, to own
its property, to carry on its business as presently conducted and to
enter into and perform its obligations under this Agreement;
(b) The execution and delivery of this Agreement by the
Transferor and its performance of and compliance with the terms of this
Agreement will not violate the Transferor's articles of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Transferor is a party or which may be
applicable to the Transferor or any of its assets;
(c) The Transferor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement to
be consummated by it, has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and
delivery by the Owner Trustee, the Indenture Trustee, the Grantor
Trustee and the Depositor, constitutes a valid, legal and binding
obligation of the Transferor, enforceable against it in accordance with
the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(d) The Transferor is not in violation of, and the execution
and delivery of this Agreement by the Transferor and its performance
and compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations
of the Transferor or its properties or materially and adversely affect
the performance of its duties hereunder;
(e) There are no actions or proceedings against, or
investigations of, the Transferor currently pending with regard to
which the Transferor has received service of process and no action or
proceeding against, or investigation of, the Transferor is, to the
knowledge of the Transferor, threatened or otherwise pending, before
any court, administrative agency or other tribunal that (A) if
determined adversely, would prohibit its entering into this Agreement
or render the Notes invalid, (B) seek to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by
this Agreement or (C) if determined adversely, would prohibit or
materially and adversely affect the sale of the Home Loans to the
Depositor, the performance by the Transferor of its obligations under,
or the validity or enforceability of, this Agreement or the Notes;
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for: (1) the execution,
delivery and performance by the Transferor of, or compliance by the
Transferor with, this Agreement or the Grantor Trust Agreement, (2) the
issuance of the Notes, (3) the sale of the Home Loans under the Home
Loan Purchase Agreement or (4) the consummation of the transactions
required of it by this Agreement, except such as shall have been
obtained before the Closing Date;
(g) The Transferor acquired title to the Home Loans in good
faith, without notice of any adverse claim;
(h) The collection practices used by the Transferor with
respect to the Home Loans have been, in all material respects, legal,
proper, prudent and customary in the non-conforming mortgage servicing
business;
(i) No Officer's Certificate, statement, report or other
document prepared by the Transferor and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading;
(j) The Transferor is solvent, is able to pay its debts as
they become due and has capital sufficient to carry on its business and
its obligations hereunder; it will not be rendered insolvent by the
execution and delivery of this Agreement or by the performance of its
obligations hereunder; no petition of bankruptcy (or similar insolvency
proceeding) has been filed by or against the Transferor prior to the
date hereof;
(k) The Prospectus Supplement (other than (i) the statements
set forth in the final paragraph of the cover of the Prospectus
Supplement, (ii) the statements set forth in the seventh paragraph on
page S-3 of the Prospectus Supplement, and (iii) the statements set
forth under the following captions: "SUMMARY - Securities Issued", "-
Priority of Payments", "- Credit Enhancement", "Tax Status", "-ERISA",
"- Legal Investment", "DESCRIPTION OF THE OFFERED NOTES", "DESCRIPTION
OF CREDIT ENHANCEMENT", "FEDERAL INCOME TAX CONSEQUENCES", "ERISA
CONSIDERATIONS", "LEGAL INVESTMENT MATTERS" and "UNDERWRITING" (other
than the last two paragraphs) as to which the Transferor makes no
statement) does not contain an untrue statement of a material fact and
does not omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(l) The Transferor has transferred the Home Loans without any
intent to hinder, delay or defraud any of its creditors; and
(m) The Private Placement Memorandum (other than (i) the
statements set forth in the first sentence of the second paragraph
immediately preceding the final paragraph of the cover of the Private
Placement Memorandum and (ii) the statements under the following
captions: "DESCRIPTION OF THE OFFERED NOTES", "FEDERAL INCOME TAX
CONSEQUENCES", "ERISA CONSIDERATIONS", "LEGAL INVESTMENT
CONSIDERATIONS" and "PLAN OF OFFERING", as to which the Transferor
makes no statement) does not contain an untrue statement of a material
fact and does not omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
It is understood and agreed that the representations and warranties set
forth in this Section 3.02 shall survive delivery of the respective Grantor
Trustee's Home Loan Files to the applicable Custodian (as the agent of the
Grantor Trustee) and shall inure to the benefit of the Securityholders, the
Depositor, the Servicer, the Indenture Trustee, the Owner Trustee, the Grantor
Trustee, the Grantor Trust and the Owner Trust. Upon discovery by any of the
Transferor, the Depositor, the Servicer, the Indenture Trustee, the Grantor
Trustee or the Owner Trustee of a breach of any of the foregoing representations
and warranties that materially and adversely affects the value of any Home Loan
or the interests of the Grantor Trust Holder therein, the party discovering such
breach shall give prompt written notice (but in no event later than two Business
Days following such discovery) to the other parties. The obligations of the
Transferor set forth in Section 3.05 hereof shall constitute the sole remedies
available hereunder to the Securityholders, the Depositor, the Servicer, the
Indenture Trustee, the Grantor Trustee or the Owner Trustee respecting a breach
of the representations and warranties contained in this Section 3.02.
Section 3.03 Representations, Warranties and Covenants of the Servicer.
The Servicer hereby represents and warrants to and covenants with the Owner
Trustee, the Indenture Trustee, the Grantor Trustee, the Noteholders, the
Depositor and the Transferor that as of the Closing Date or as of such date
specifically provided herein:
(a) The Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Oklahoma
and is or will be in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Loan in accordance with the terms of this
Agreement;
(b) The execution and delivery of this Agreement by the
Servicer and its performance of and compliance with the terms of this
Agreement will not violate the Servicer's articles of incorporation or
by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Servicer is a party or which may be
applicable to the Servicer or any of its assets;
(c) The Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Indenture Trustee, the Owner Trustee, the Grantor Trustee and the
Depositor, constitutes a valid, legal and binding obligation of the
Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating
to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(d) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations
of the Servicer or materially and adversely affect the performance of
its duties hereunder;
(e) There are no actions or proceedings against, or
investigations of, the Servicer currently pending with regard to which
the Servicer has received service of process and no action or
proceeding against, or investigation of, the Servicer is to the
knowledge of the Servicer, threatened or otherwise pending, before any
court, administrative agency or other tribunal that (A) if determined
adversely, would prohibit its entering into this Agreement or render
the Notes invalid, (B) seek to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement
or (C) if determined adversely, would prohibit or materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement or the
Notes;
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Servicer of, or compliance by the Servicer with,
this Agreement or the Notes, or for the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained
prior to the Closing Date;
(g) The Servicer is duly licensed where required as a
"Licensee" or is otherwise qualified in each state in which it
transacts business and is not in default of such state's applicable
laws, rules and regulations, except where the failure to so qualify or
such default would not have a material adverse effect on the ability of
the Servicer to conduct its business or perform its obligations
hereunder;
(h) The Servicer is an Eligible Servicer and services mortgage
loans in accordance with Accepted Servicing Procedures;
(i) No Officer's Certificate, statement, report or other
document prepared by the Servicer and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading;
(j) The Servicer is solvent and will not be rendered insolvent
as a result of the performance of its obligations pursuant to this
Agreement;
(k) The Servicer has not waived any default, breach, violation
or event of acceleration existing under any Debt Instrument or any
related Mortgage;
(l) The Servicer will cause to be performed any and all acts
required to be performed by the Servicer to preserve the rights and
remedies of the Grantor Trustee, the Owner Trustee and the Indenture
Trustee in any Insurance Policies applicable to the Home Loans
including, without limitation, in each case, any necessary
notifications of insurers, assignments of policies or interests
therein, and establishments of co-insured, joint loss payee and
mortgagee rights in favor of the Grantor Trustee, the Owner Trustee and
the Indenture Trustee;
(m) The Servicer shall comply with, and shall service, or
cause to be serviced, each Home Loan, in accordance with the Accepted
Servicing Procedures; and
(n) The Servicer agrees that, so long as it shall continue to
serve in the capacity contemplated under the terms of this Agreement,
it shall remain in good standing under the laws governing its creation
and existence and qualified under the laws of each state in which it is
necessary to perform its obligations under this Agreement or in which
the nature of its business requires such qualification; it shall
maintain all licenses, permits and other approvals required by any law
or regulations as may be necessary to perform its obligations under
this Agreement and to retain all rights to service the Loans; and it
shall not dissolve or otherwise dispose of all or substantially all of
its assets.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 3.03 shall survive delivery of the
respective Grantor Trustee's Home Loan Files to the Indenture Trustee and shall
inure to the benefit of the Depositor, the Noteholders, the Owner Trustee, the
Grantor Trustee and the Indenture Trustee. Upon discovery by any of the
Transferor, the Depositor, the Servicer, the Indenture Trustee, the Grantor
Trustee or the Owner Trustee of a breach of any of the foregoing
representations, warranties and covenants that materially and adversely affects
the value of any Home Loan or the interests of such Person therein, the party
discovering such breach shall give prompt written notice (but in no event later
than two Business Days following such discovery) to the other parties.
Section 3.04 Representations and Warranties Regarding Individual Home
Loans.
The Transferor hereby represents and warrants to the Depositor, the Issuer,
the Indenture Trustee, the Grantor Trustee, the Owner Trustee and the
Noteholders, with respect to each Home Loan as of the Closing Date, except as
otherwise expressly stated:
(a) Loan Information. The information pertaining to each
Home Loan set forth in the Home Loan Schedule was true and correct in
all material respects as of the Cut-Off Date;
(b) Payments Current; No Transferor Advances or Payments. As
of the applicable Cut-Off Date, none of the Home Loans was 30 or more
days past due (without giving effect to any grace period); the
Transferor has not advanced funds, induced, solicited or knowingly
received any advance of funds from a party other than the Obligor,
directly or indirectly, for the payment of any amount required by any
Home Loan and there is no obligation on the part of the Transferor or
any other party other than the Obligor to make payments with respect
to the Home Loan and the Obligor is not entitled to any refund of any
amounts paid or due to the lender pursuant to the Debt Instrument or
any related Mortgage;
(c) No Waiver or Modification. The terms of the Debt
Instrument and any related Mortgage contain the entire agreement of
the parties thereto and have not been impaired, waived, altered or
modified in any respect, except by written instruments reflected in
the related Grantor Trustee's Home Loan File and recorded, if
necessary, to maintain the lien priority of the any related Mortgage;
no instrument of waiver, alteration, expansion or modification has
been executed, and no Obligor has been released, in whole or in part,
except in connection with an assumption agreement which assumption
agreement is part of the related Grantor Trustee's Home Loan File and
the payment terms of which are reflected in the related Home Loan
Schedule;
(d) No Defenses. The Debt Instrument and any related
Mortgage are not subject to any set-off, claims, counterclaim or
defense, including the defense of usury or of fraud in the inducement,
and will not be so subject in the future with respect to the goods and
services provided under the Debt Instrument; and neither the operation
of any of the terms of the Debt Instrument and any related Mortgage,
nor the exercise of any right thereunder, will render such Debt
Instrument or any such Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(e) Compliance with Laws. Any and all requirements of any
federal, state or local law applicable to the Home Loan (including any
law applicable to the origination, servicing and collection practices
with respect thereto) have been complied with; and, to the best of the
Transferor's knowledge, no fraud or misrepresentation was committed by
any Person in connection with the origination and servicing of such
Home Loan;
(f) No Satisfaction or Release of Lien. No Debt Instrument
or any related Mortgage has been satisfied, canceled, rescinded or
subordinated, in whole or part; and the Transferor, except as
otherwise permitted by clause (c) of this Section 3.04, has not waived
the performance by the Obligor of any action, if the Obligor's failure
to perform such action would cause the Debt Instrument or Home Loan to
be in default; and, any related Mortgaged Property has not been
released from the lien of any related Mortgage, in whole or in part,
nor has any instrument been executed that would effect any such
satisfaction, subordination, release, cancellation or rescission;
(g) Valid Lien. Any related Mortgage is a valid, subsisting
and enforceable lien on any related Mortgaged Property, including the
land and all buildings on any such Mortgaged Property;
(h) Validity and Enforceability of Loan Documents. The Debt
Instrument and any related Mortgage (i) are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights in general and by general principles of
equity and (ii) contain customary and enforceable provisions so as to
render the rights and remedies of the holder thereof adequate for the
realization against any related Mortgaged Property of the benefits of
the security provided thereby, including, (A) in the case of any
related Mortgage designated as a deed of trust, by trustee's sale, and
(B) otherwise by judicial foreclosure;
(i) Capacity of Parties. To the best of the Transferor's
knowledge, all parties to the Debt Instrument and any related Mortgage
had legal capacity at the time to enter into the Home Loan and to
execute and deliver the Debt Instrument and any related Mortgage, and
the Debt Instrument and any related Mortgage have been duly and
properly executed by such parties;
(j) Full Disbursement of Proceeds. As of the applicable
Cut-Off Date, the proceeds of the Home Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any
and all applicable requirements set forth in the Home Loan documents
have been complied with; the Obligor is not entitled to any refund of
any amounts paid or due under the Debt Instrument or any related
Mortgage;
(k) Ownership by Transferor. Immediately prior to the sale,
transfer and assignment to the Depositor, the Transferor will have
good and indefeasible legal title to the Home Loan, the related Debt
Instrument and any related Mortgage and the full right to transfer
such Home Loan, the related Debt Instrument and any related Mortgage,
and the Transferor will have been the sole owner thereof, subject to
no liens, pledges, charges, mortgages, encumbrances or rights of
others, except for such liens as will be released simultaneously with
the transfer and assignment of the Home Loans to the Depositor (and
the Grantor Trustee's Home Loan File will contain no evidence
inconsistent with the foregoing) ; and immediately upon the sale,
transfer and assignment contemplated by the Home Loan Purchase
Agreement, the Depositor will hold good title to, and be the sole
owner of each Home Loan, the related Debt Instrument and any related
Mortgage, free of all liens, pledges, charges, mortgages, encumbrances
or rights of others;
(l) No Defaults. Except for those Home Loans referred to in
clause (b) of this Section 3.04 that are delinquent as of the Cut-Off
Date, there is no default, breach, violation or event of acceleration
known to the Transferor under the Home Loan, the related Debt
Instrument and any related Mortgage and there is no event known to the
Transferor which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration thereunder and neither the
Transferor nor its predecessors have waived any such default, breach,
violation or event of acceleration;
(m) [Reserved]
(n) Interest, Term and Amortization. Each Home Loan is a
fixed rate loan; the Debt Instrument shall mature within not more than
25 years from the date of origination of the Home Loan; the Debt
Instrument is payable in substantially equal Monthly Payments, with
interest payable in arrears, and requires a Monthly Payment which is
sufficient to fully amortize the original principal balance over the
original term and to pay interest at the related Home Loan Interest
Rate; interest on each Home Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months, and the Debt
Instrument does not provide for any extension of the original term;
(o) Security. The related Debt Instrument is not and has not
been secured by any collateral except, the lien of any related
Mortgage;
(p) Deed of Trust. If any related Mortgage constitutes a
deed of trust, a trustee, duly qualified under applicable law to serve
as such, has been properly designated and currently so serves and is
named in any such Mortgage, or a valid substitution of trustee has
been recorded, and no extraordinary fees or expenses are or will
become payable to the trustee under the deed of trust, except in
connection with default proceedings and a trustee's sale after default
by the Obligor;
(q) Value and Marketability. The Transferor has no knowledge
of any circumstances or conditions not reflected in the
representations set forth herein, or in the Home Loan Schedule, or in
the related Grantor Trustee's Home Loan File with respect to any
related Mortgage, related Mortgaged Property or the Obligor which
could reasonably be expected to materially and adversely affect the
value of any such Mortgaged Property or the marketability of the Home
Loan or cause the Home Loan to become delinquent or otherwise be in
default;
(r) [Reserved]
(s) Loan Documents and Delivery of Loan File. There exists a
Home Loan File relating to each Home Loan and such Home Loan File
contains all of the original or certified documentation listed in
Section 2.04 hereof for such Home Loan. Each Grantor Trustee's Home
Loan File has been delivered to the applicable Custodian and each
Servicer's Home Loan File is being held in trust by the Servicer for
the benefit of, and as agent for, the Grantor Trust Holder and the
Grantor Trustee as their respective interest appear herein. Each
document included in the Home Loan File which is required to be
executed by the Obligor has been executed by the Obligor in the
appropriate places. With respect to each Home Loan, any related
Assignment of Mortgage to the Grantor Trustee is in recordable form
and is acceptable for recording under the laws of the jurisdiction in
which the related Mortgaged Property is located. All blanks on any
form required to be completed have been so completed;
(t) Mortgaged Property. Any related Mortgaged Property is
improved by a residential dwelling and is not a Home Loan in respect
of a manufactured home or mobile home or the land on which a
manufactured home or mobile home has been placed, unless such
manufactured home or mobile home is treated as real estate under
applicable law;
(u) Underwriting and Origination. Each Home Loan was (i)
underwritten or re-underwritten in accordance with the Transferor's
underwriting guidelines by the Transferor or another lender that has
been granted "delegated underwriting authority" by the Transferor and
(ii) originated by the Transferor or through the Transferor's network
of brokers, dealers and correspondents (including Home Loans acquired
by such correspondents) or through the Transferor's portfolio
acquisition program and (iii) originated no earlier than January 1985;
(v) Flood and Hazard Insurance. If any related Mortgaged
Property securing any Home Loan is in an area identified by the
Federal Emergency Management Agency ("FEMA") as having special flood
hazards, unless the community in which the area is situated is not
participating in the National Flood Insurance Program and the
regulations thereunder or less than a year has passed since FEMA
notification regarding such hazards, a flood insurance policy is in
effect with respect to any related Mortgaged Property with a generally
acceptable carrier which complies with section 102(a) of the Flood
Disaster Protection Act of 1968, as amended; all improvements upon any
related Mortgaged Property securing a Home Loan are insured by a
generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where any
such Mortgaged Property is located; and with respect to any hazard
insurance on any related Mortgaged Property which has a first lien
priority Mortgage at origination or with respect to any flood
insurance on any related Mortgaged Property, the Transferor has caused
to be performed or shall cause to be performed within a reasonable
time following the Closing Date any and all acts required to preserve
the rights and remedies of the Servicer, on behalf of the Grantor
Trustee, in any such hazard insurance or flood insurance policies
applicable to any such Mortgaged Properties, including without
limitation any necessary notifications of insurers, assignments of
policies or interests therein, and establishment of coinsured, joint
loss payee and mortgagee rights in favor of the Servicer, on behalf of
the Grantor Trustee;
(w) [Reserved]
(x) [Reserved]
(y) Superior Lien. At the time of origination of the Home
Loan (other than an Unsecured Home Loan), each related Superior Lien,
if any, was certified by the Obligor or verified by the applicable
Superior Lien lender as not being 30 or more days delinquent;
(z) Licensing and Qualification. To the best of the
Transferor's knowledge, all parties which have had any interest in the
Home Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such
interest, were) (i) in compliance with any and all applicable
licensing requirements of the laws of the state wherein any related
Mortgaged Property, or with respect to an Unsecured Loan, the related
Obligor is located, and (ii) (A) organized under the laws of such
state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal
offices in such state, or (D) not doing business in such state;
(aa) Assumption. Any related Mortgage contains an
enforceable provision requiring the consent of the mortgagee to
assumption of the related Home Loan upon sale of any related Mortgaged
Property;
(ab) No Homestead or Relief Act. There is no homestead or
other exemption available to the mortgagor which would materially
interfere with the right to sell any related Mortgaged Property at a
trustee's sale or the right to foreclose any related Mortgage; no
relief has been requested or allowed to the Obligor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(ac) Ownership of Mortgaged Property. The related Servicer's
Home Loan File for each Home Loan (other than an Unsecured Home Loan)
contains a title document with respect to such Home Loan reflecting
that title to any related Mortgaged Property is vested at least 50% in
the related Obligor;
(ad) No Condemnation or Damage. To the best of the
Transferor's knowledge, each related Mortgaged Property (including
each residential dwelling improvement thereon) is free of damage which
materially and adversely affects the value thereof and there is no
proceeding pending for the total or partial condemnation of any such
Mortgaged Property;
(ae) [Reserved]
(af) [Reserved]
(ag) No Bulk Transfer or Adverse Selection. The transfer,
assignment and conveyance of the Debt Instruments and the related
Mortgages by the Transferor to the Depositor were not subject to the
bulk transfer laws or any similar statutory provisions in effect in
any applicable jurisdiction; no Home Loan was adversely selected as to
credit risk from the pool of home loans owned by the Transferor;
(ah) [Reserved]
(ai) No Current Bankruptcy. As of the applicable Cut-Off
Date, no Obligor is a debtor under proceedings under the United States
Bankruptcy Code, and no Obligor has defaulted in payments on a Home
Loan after the filing of such bankruptcy case, whether under a plan or
reorganization or otherwise;
(aj) [Reserved]
(ak) [Reserved]
(al) [Reserved]
(am) [Reserved]
(an) Environmental Compliance. To the best of the
Transferor's knowledge, any related Mortgaged Property is free from
any and all toxic and hazardous substances and there exists no
violation of any environmental law, rule or regulation (whether local,
state or federal) in respect of any such Mortgaged Property which
violation has or could have a material adverse effect on the market
value of such Mortgaged Property. The Transferor has no knowledge of
any pending action or proceeding directly involving any related
Mortgaged Property in which compliance with any environmental law,
rule or regulation is in issue; and, to the Transferor's best
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a
prerequisite to the use and enjoyment of such Mortgaged Property;
(ao) [Reserved]
(ap) No Taxable Mortgage Pool. With respect to Home Loans,
on the Closing Date, 55% or more (by aggregate Principal Balance) of
the Home Loans do not constitute "real estate mortgages" for the
purpose of Treasury Regulations Section 301.7701(i). For this purpose
a Home Loan does not constitute a "real estate mortgage" if:
(i) The Home Loan is not secured by an interest
in real property, or
(ii) The Home Loan is not an "obligation principally
secured by an interest in real property." For this purpose an
"obligation is principally secured by an interest in real
property" if it satisfies either test set out in paragraph (1)
or paragraph (2) below.
(1) The 80-percent test. An obligation is
principally secured by an interest in real
property if the fair market value of the
interest in real property securing the
obligation (A) was at least equal to 80
percent of the adjusted issue price of the
obligation at the time the obligation was
originated (or, if later, the time the
obligation was significantly modified); or
(B) is at least equal to 80 percent of the
adjusted issue price of the obligation on
the Closing Date.
For purposes of this paragraph (1), the fair market value of
the real property interest must be first reduced by the amount
of any lien on the real property interest that is senior to
the obligation being tested, and must be further reduced by a
proportionate amount of any lien that is in parity with the
obligation being tested, in each case before the percentages
set forth in (1)(A) and (1)(B) are determined. The adjusted
issue price of an obligation is its issue price plus the
amount of accrued original issue discount, if any, as of the
date of determination.
(2) Alternative test. An obligation is
principally secured by an interest in real
property if substantially all of the
proceeds of the obligation were used to
acquire or to improve or protect an interest
in real property that, at the origination
date, is the only security for the
obligation. For purposes of this test, loan
guarantees made by the United States or any
state (or any political subdivision, agency,
or instrumentality of the United States or
of any state), or other third party credit
enhancement are not viewed as additional
security for a loan. An obligation is not
considered to be secured by property other
than real property solely because the
obligor is personally liable on the
obligation. For this purpose only,
substantially all of the proceeds of the
obligations means 66 2/3% or more of the
gross proceeds.
(aq) [Reserved]
(ar) Consent of Superior Lien. With respect to each Home
Loan (other than Unsecured Home Loans) that is not a first lien
mortgage loan, either (i) no consent for the Home Loan was required by
the holder of the related Superior Lien or (ii) such consent has been
obtained and has been delivered to the Indenture Trustee;
(as) Loan Types; Owner Occupied Properties. Each Home Loan
is a Combination Loan, a Debt Consolidation Loan or a home equity loan
and at the time of its origination no Home Loan was secured by a
Mortgage on a non-owner occupied Mortgaged Property;
(at) Debt Instrument. Each Debt Instrument is comprised of
an original promissory note and each promissory note constitutes an
"instrument" or "chattel paper" for purposes of Article 9 of the UCC;
each Debt Instrument has been delivered to the Custodian;
(au) No Encroachment. To the best of the Transferor's
knowledge, all improvements which were considered in determining the
appraised value of any related Mortgaged Property lay wholly within
the boundaries and building restriction lines of any such Mortgaged
Property and no improvements on adjoining properties encroach upon any
such Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(av) [Reserved].
(aw) Enforcement Against Originator. In the event that the
Home Loan was originated by an entity (such entity, the "Originator")
other than the Transferor or an affiliate of the Transferor, the
Grantor Trustee and the Indenture Trustee may enforce any remedies for
breach of representations and warranties made by the Transferor with
respect to such Home Loan;
(ax) No Buydown or GPM Loans. The Home Loan does not contain
provisions pursuant to which Monthly Payments are paid or partially
paid with funds deposited in any separate account established by the
Transferor, the Obligor or anyone on behalf of the Obligor, or paid by
any source other than the Obligor nor does it contain any other
similar provisions currently in effect which may constitute a
"buydown" provision. The Home Loan is not a graduated payment Home
Loan and the Home Loan does not have a shared appreciation or other
contingent interest feature; and
(ay) Review of Loan Documents. The Transferor has reviewed
all of the documents constituting the Mortgage File and has made such
inquiries as it deems reasonable under the circumstances to make and
confirm the accuracy of the representations set forth herein.
Section 3.05 Purchase and Substitution.
(a) It is understood and agreed that the representations and warranties set
forth in Section 3.02 and Section 3.04 hereof shall survive the conveyance of
the Home Loans from the Transferor to the Depositor and from the Depositor to
the Grantor Trustee, the conveyance of the Grantor Trust Certificate to the
Issuer, the pledge of the Grantor Trust Certificate to the Indenture Trustee and
the delivery of the Notes to the Noteholders. Upon discovery by the Depositor,
the Servicer, the Transferor, any Custodian, the Issuer, the Indenture Trustee,
the Grantor Trustee, the Owner Trustee or any Securityholder of a breach of any
of the representations and warranties set forth in Section 3.02 and Section 3.04
which materially and adversely affects the value of the Home Loans or the
interests of the Grantor Trustee, the Owner Trustee or the Indenture Trustee in
the related Home Loan (notwithstanding that such representation and warranty was
made to the Transferor's best knowledge), the party discovering such breach
shall give prompt written notice to the others. The Transferor shall within 60
days of the earlier of its discovery or its receipt of notice of any breach of a
representation or warranty, including any breach of the representation set forth
in Section 3.04(ap) hereof as a result of an aggregate of Home Loans which would
not otherwise cause a breach of any other representation or warranty, promptly
cure such breach in all material respects. If within 60 days after the earlier
of the Transferor's discovery of such breach or the Transferor's receiving
notice thereof such breach has not been remedied by the Transferor and such
breach materially and adversely affects the interests of the Grantor Trustee,
the Owner Trustee or the Indenture Trustee in, or the value of, the related Home
Loan (the "Defective Home Loan"), the Transferor shall on or before the
Determination Date next succeeding the end of such 60-day period either (i)
remove such Defective Home Loan from the Grantor Trust (in which case it shall
become a Deleted Home Loan) and substitute one or more Qualified Substitute Home
Loans in the manner and subject to the conditions set forth in this Section 3.05
or (ii) purchase such Defective Home Loan at a purchase price equal to the
Purchase Price by depositing such Purchase Price in the Collection Account. The
Transferor shall provide the Servicer, the Indenture Trustee, the Grantor
Trustee and the Owner Trustee with a certification of a Responsible Officer on
the Determination Date next succeeding the end of such 60-day period indicating
whether the Transferor is purchasing the Defective Home Loan or substituting in
lieu of such Defective Home Loan a Qualified Substitute Home Loan.
Any substitution of Home Loans pursuant to this Section 3.05(a) shall be
accompanied by payment by the Transferor of the Substitution Adjustment, if any,
to be deposited in the Collection Account. For purposes of calculating the
Available Collection Amount for any Payment Date, amounts paid by the Transferor
pursuant to this Section 3.05 in connection with the repurchase or substitution
of any Defective Home Loan that are on deposit in the Collection Account as of
the Determination Date for such Payment Date shall be deemed to have been paid
during the related Due Period and shall be transferred to the Note Payment
Account as part of the Available Collection Amount to be retained therein or
transferred to the Certificate Distribution Account, if applicable, pursuant to
Section 5.01(c) hereof.
In addition to such cure, repurchase or substitution obligation, the
Transferor shall indemnify the Issuer, the Depositor, the Indenture Trustee, the
Grantor Trustee and the Securityholders against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach by
the Transferor of any of it representations and warranties contained in Section
3.02 and Section 3.04.
(b) In addition to the preceding repurchase obligations, each of the
Transferor and Servicer shall have the option, exercisable in its sole
discretion at any time, (i) to repurchase from the Grantor Trustee any Defaulted
Home Loan or (ii) substitute one or more Qualified Substitute Home Loans for any
Defaulted Home Loan (in which case such Defaulted Home Loan shall become a
Deleted Home Loan); provided, however, that any such repurchase or substitution
of a Defaulted Home Loan pursuant to this Subsection shall be conducted in the
same manner as the repurchase or substitution of a Defective Home Loan pursuant
to this Section 3.05.
(c) As to any Deleted Home Loan for which the Transferor substitutes a
Qualified Substitute Home Loan or Loans, the Transferor shall effect such
substitution by delivering to the Indenture Trustee and Grantor Trustee (i) a
certification executed by a Responsible Officer of the Transferor to the effect
that the Substitution Adjustment has been credited to the Collection Account and
(ii) the documents constituting the Grantor Trustee's Home Loan File for such
Qualified Substitute Home Loan or Loans.
The Servicer shall deposit in the Collection Account all payments received
in connection with such Qualified Substitute Home Loan or Loans after the date
of such substitution. Monthly Payments received with respect to Qualified
Substitute Home Loans on or before the date of substitution will be retained by
the Transferor. The Grantor Trustee will be entitled to all payments received on
the Deleted Home Loan on or before the date of substitution and the Transferor
shall thereafter be entitled to retain all amounts subsequently received in
respect of such Deleted Home Loan. The Transferor shall give written notice to
the Grantor Trustee, the Servicer (if the Transferor is not then acting as
such), the Indenture Trustee and Owner Trustee that such substitution has taken
place and the Servicer shall amend the Home Loan Schedule to reflect (i) the
removal of such Deleted Home Loan from the terms of this Agreement and (ii) the
substitution of the Qualified Substitute Home Loan. The Transferor shall
promptly deliver to the Grantor Trustee, the Servicer (if the Transferor is not
then acting as such), the Indenture Trustee and Owner Trustee, a copy of the
amended Home Loan Schedule. Upon such substitution, such Qualified Substitute
Home Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Transferor shall be deemed to have made with respect to such
Qualified Substitute Home Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Section 3.02 and Section
3.04 hereof. On the date of such substitution, the Transferor will deposit into
the Collection Account an amount equal to the related Substitution Adjustment,
if any.
(d) With respect to all Defective Home Loans or other Home Loans
repurchased by the Transferor pursuant to this Agreement, upon the deposit of
the Purchase Price therefor into the Collection Account, the Grantor Trustee
shall assign to the Transferor, without recourse, representation or warranty,
all the Grantor Trustee's right, title and interest in and to such Defective
Home Loans or other Home Loans, which right, title and interest were conveyed to
the Grantor Trustee pursuant to the Grantor Trust Agreement. The Grantor Trustee
shall take any actions as shall be reasonably requested by the Transferor to
effect the repurchase of any such Home Loans.
(e) It is understood and agreed that the obligations of the Transferor to
cure or to repurchase or substitute any such Home Loan, and to indemnify for any
breach of any representation or warranty with respect thereto, pursuant to this
Section 3.05 shall constitute the sole remedies against it with respect to such
breach of the foregoing representations or warranties or the existence of the
foregoing conditions. With respect to representations and warranties made by the
Transferor pursuant to Section 3.02 and Section 3.04 hereof that are made to the
Transferor's best knowledge, if it is discovered by any of the Depositor, the
Transferor, the Indenture Trustee, the Grantor Trustee or the Owner Trustee that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Home Loan,
notwithstanding the Transferor's lack of knowledge, such inaccuracy shall be
deemed a breach of the applicable representation and warranty. Any cause of
action against the Transferor relating to or arising out of a defect in a
Grantor Trustee's Home Loan File as contemplated by Section 2.06 of the Grantor
Trust Agreement or against the Transferor relating to or arising out of a breach
of any representations and warranties made in Section 3.02 and Section 3.04
hereof shall accrue as to any Home Loan upon (i) discovery of such defect or
breach by any party and notice thereof to the Transferor or notice thereof by
the Transferor to the Indenture Trustee, (ii) failure by the Transferor to cure
such defect or breach or purchase or substitute such Home Loan as specified
above, and (iii) demand upon the Transferor, as applicable, by the Grantor
Trustee or the Grantor Trust Holder for all amounts payable in respect of such
Home Loan.
(f) Neither the Grantor Trustee, the Owner Trustee nor the Indenture
Trustee shall have any duty to conduct any affirmative investigation other than
as specifically set forth in this Agreement as to the occurrence of any
condition requiring the repurchase or substitution of any Home Loan pursuant to
this Section or the eligibility of any Home Loan for purposes of this Agreement.
(g) In connection with a repurchase or substitution of any Home Loan
pursuant to this Section 3.05, the Servicer shall amend the Home Loan Schedule
to reflect (i) the removal of the applicable Deleted Home Loan from the terms of
this Agreement, and (ii) if applicable, the substitution of the applicable
Qualified Substitute Home Loan. In connection with its monthly reporting here
under, the Servicer shall deliver a copy of the amended Home Loan Schedule to
the Grantor Trustee, the Indenture Trustee and the Transferor.
ARTICLE IV
ADMINISTRATION AND SERVICING OF THE HOME LOANS
Section 4.01 Duties of the Servicer.
(a) Servicing Standard. The Servicer, as an independent contractor, shall
service and administer the Home Loans and shall have full power and authority,
acting alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable and consistent
with the terms of this Agreement and the Accepted Servicing Procedures.
Notwithstanding anything to the contrary contained herein, the Servicer, in
servicing and administering the Home Loans, shall employ or cause to be employed
procedures (including collection, modification, foreclosure and liquidation
procedures) that conform to the Accepted Servicing Procedures. In performing its
obligations hereunder the Servicer shall at all times act in good faith and in a
commercially reasonable manner. The Servicer shall provide to the Obligors any
reports and statements that are required by applicable state or federal law. The
Servicer has and shall maintain the facilities, procedures and experienced
personnel that are reasonably necessary to comply with the servicing standard
set forth in this Section 4.01(a) and the duties of the Servicer set forth in
this Agreement relating to the servicing and administration of the Home Loans.
(b) Servicing Advances. In accordance with the preceding general servicing
standard, the Servicer, or any Subservicer on behalf of the Servicer, shall make
all Servicing Advances in connection with the servicing of each Home Loan
hereunder. Notwithstanding any provision to the contrary herein, neither the
Servicer nor any Subservicer on behalf of the Servicer shall have any obligation
to advance its own funds (i) for any delinquent scheduled payments of principal
and interest on any Home Loan, (ii) to cure, keep current or, in connection with
any proceeding against the related Mortgaged Property, satisfy the indebtedness
secured by any Superior Liens on such Mortgaged Property. No costs incurred by
the Servicer or any Subservicer in respect of Servicing Advances shall, for the
purposes of distributions in respect of the Grantor Trust Certificate to
Securityholders, be added to the amount owing under the related Home Loan.
Notwithstanding any obligation by the Servicer to make a Servicing Advance
hereunder with respect to a Home Loan, the Servicer shall only make a Servicing
Advance for such Home Loan, if the Servicer, in good faith, determines there is
a reasonable likelihood of (i) recovering such Servicing Advance, together with
any expected future Servicing Advances and any prior Servicing Advances for such
Home Loan, and (ii) recovering an economically significant amount attributable
to the outstanding interest and principal owing on such Home Loan for the
benefit of the Securityholders in excess of the costs and expenses to obtain
such recovery, including without limitation any Servicing Advances therefor and,
if applicable, the outstanding indebtedness of all Superior Liens. Pursuant to
this Agreement the Servicer will be entitled to be reimbursed for any Servicing
Advances, plus any accrued interest thereon from the date of such advance to the
date of reimbursement and at the rate equal to the Servicer's cost of funds,
including any Nonrecoverable Servicing Advance pursuant to Section 5.01(c)
hereof.
(c) Waivers, Modifications and Extensions; Subordination. In
accordance with the servicing standard in Section 4.01(a), the Servicer shall
collect all payments called for under the terms and provisions of the Home
Loans. The Servicer in its discretion may waive or permit to be waived any
penalty interest or any other fee or charge which the Servicer would be entitled
to retain hereunder as servicing compensation and extend the Due Date on a Debt
Instrument for a period (with respect to each payment as to which the Due Date
is extended) not greater than 90 days after the initially scheduled Due Date for
such payment. Notwithstanding anything in this Agreement to the contrary, the
Servicer shall not permit any additional extension or modification with respect
to any Home Loan other than that permitted by the immediately preceding
sentence, unless the Home Loan is a Defaulted Home Loan. (See Section 4.10
hereof for a description of the recovery procedures for Defaulted Home Loans.)
The Servicer may in its discretion enter in subordination agreements with
respect to any Home Loan, provided that the Servicer determines, consistent with
this Agreement and the Accepted Servicing Procedures, that the entering into of
such subordination agreement is in the best interests of the Grantor Trust. The
Servicer may grant a waiver or enter into a subordination agreement with respect
to the refinancing of the indebtedness secured by a Superior Lien on the related
Mortgaged Property, provided that the Obligor is in a better financial or cash
flow position as a result of such refinancing, which may include a reduction in
the Obligor's scheduled monthly payment on the indebtedness secured by such
Superior Lien or the conversion of an adjustable rate loan into a new fixed rate
loan. The Servicer shall notify the Grantor Trustee and the Indenture Trustee of
any modification, waiver or amendment of any provision of any Home Loan and the
date thereof, and shall deliver to the Custodian for deposit in the related
Grantor Trustee's Home Loan File, a true and correct copy or, if available, an
original of the agreement relating to such modification, waiver or amendment
promptly following the execution thereof.
(d) Instruments of Satisfaction or Release. Without limiting the generality
of Section 4.01(c), the Servicer, in its own name or in the name of a
Subservicer, is hereby authorized and empowered, when the Servicer believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Grantor Trust Holder and the Grantor Trustee or any of them, and upon notice to
the Grantor Trustee, any and all instruments of satisfaction or cancellation or
of partial or full release or discharge, and all other comparable instruments
with respect to the Home Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed in lieu of foreclosure so as to convert
the ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Grantor Trustee and Grantor Trust Holder.
(e) Powers of Attorney. The Grantor Trustee shall execute, at the written
direction of the Servicer, any limited or special powers of attorney and other
documents reasonably acceptable to the Grantor Trustee to enable the Servicer or
any Subservicer to carry out their servicing and administrative duties
hereunder, including, without limitation, limited or special powers of attorney
with respect to any Foreclosure Property, and the Grantor Trustee shall not be
accountable for the actions of the Servicer or any Subservicers under such
powers of attorney and shall be indemnified by such parties with respect to such
actions.
Section 4.02 [Reserved]
Section 4.03 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain with a responsible company, and at its own
expense, a blanket fidelity bond and an errors and omissions insurance policy in
such amounts as required by, and satisfying any other requirements of, the
Federal Housing Administration and the FHLMC, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Home Loans
("Servicer Employees"). Any such fidelity bond and errors and omissions
insurance shall protect and insure the Servicer against losses, including losses
resulting from forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts (including acts relating to the origination and servicing of
loans of the same type as the Home Loans) of such Servicer Employees. Such
fidelity bond shall also protect and insure the Servicer against losses in
connection with the release or satisfaction of a Home Loan without having
obtained payment in full of the indebtedness secured thereby. In the event of
any loss of principal or interest on a Home Loan for which reimbursement is
received from the Servicer's fidelity bond or errors and omissions insurance,
the proceeds from any such insurance will be deposited in the Collection
Account. No provision of this Section 4.03 requiring such fidelity bond and
errors and omissions insurance shall diminish or relieve the Servicer from its
duties and obligations as set forth in this Agreement. Upon the request of the
Grantor Trustee or the Indenture Trustee, the Servicer shall cause to be
delivered to the requesting party a certified true copy of such fidelity bond
and insurance policy.
Section 4.04 Filing of Continuation Statements.
On or before the fifth anniversary of the filing of any financing
statements by the Transferor and the Depositor, respectively, with respect to
the assets conveyed to the Grantor Trustee or to the Owner Trust, the Transferor
and the Depositor shall prepare, have executed by the necessary parties and file
in the proper jurisdictions all financing and continuation statements necessary
to maintain the liens, security interests and priorities of such liens and
security interests that have been granted by the Transferor and the Depositor,
respectively, the Transferor and the Depositor shall continue to file on or
before each fifth anniversary of the filing of any financing and continuation
statements such additional financing and continuation statements until the Owner
Trust and Grantor Trust have terminated pursuant to Section 9.1 of the Owner
Trust Agreement and Section 7.01 of the Grantor Trust Agreement, respectively.
The Indenture Trustee and Grantor Trustee agree to cooperate with the Transferor
and the Depositor in preparing, executing and filing such statements. The
Indenture Trustee and Grantor Trustee agree to notify the Transferor and the
Depositor on the third Payment Date prior to each such fifth anniversary of the
requirement that they file such financing and continuation statements. The
filing of any such statement with respect to the Transferor and the Depositor
shall not be construed as any indication of an intent of any party contrary to
the expressed intent set forth in Section 2.03 hereof and Section 2.04 of the
Grantor Trust Agreement. If the Transferor or the Depositor has ceased to do
business whenever any such financing and continuation statements must be filed
or the Transferor or the Depositor fails to file any such financing statements
or continuation statements at least one month prior to the expiration thereof,
each of the Transferor and the Depositor does hereby make, constitute and
appoint the Grantor Trustee its attorney-in-fact, with full power and authority,
to execute and file in its name and on its behalf any such financing statements
or continuation statements required under this Section 4.04 relating to assets
conveyed to the Grantor Trustee and the Depositor does hereby make, constitute
and appoint the Indenture Trustee its attorney-in-fact, with full power and
authority, to execute and file in its name and on its behalf any such financing
statements or continuation statements required under this Section 4.04 relating
to assets conveyed to the Owner Trust.
Section 4.05 [Reserved]
Section 4.06 Subservicing.
(a) Appointment and Termination of Subservicers. The Servicer may enter
into Subservicing Agreements for any servicing and administration of Home Loans
with any institution that is an Eligible Servicer and in compliance with the
laws of each state necessary to enable it to perform its obligations under such
Subservicing Agreement. The Servicer shall give prior written notice to the
Grantor Trustee of the appointment of any Subservicer. The Servicer shall be
entitled to terminate any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement and to either service the related
Home Loans directly or enter into a Subservicing Agreement with a successor
subservicer which qualifies hereunder.
In the event of termination of any Subservicer, and unless a successor
Subservicer has otherwise been appointed, all servicing obligations of such
Subservicer shall be assumed simultaneously by the Servicer without any
additional act or deed on the part of such Subservicer or the Servicer, and the
Servicer shall service directly the related Home Loans.
Each Subservicing Agreement shall include the provision that such agreement
may be immediately terminated by the Grantor Trustee in the event that the
Servicer shall, for any reason, no longer be the Servicer. In no event shall any
Subservicing Agreement require the Grantor Trustee, as Successor Servicer, for
any reason whatsoever to pay compensation to a Subservicer in order to terminate
such Subservicer.
(b) Servicer Liability. Notwithstanding any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Servicer shall remain obligated and primarily
liable to the Grantor Trustee and the Grantor Trust Holder for the servicing and
administration of the Home Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Home Loans. For purposes
of this Agreement, the Servicer shall be deemed to have received payments on
Home Loans when the Subservicer has actually received such payments and, unless
the context otherwise requires, references in this Agreement to actions taken or
to be taken by the Servicer in servicing the Home Loans include actions taken or
to be taken by a Subservicer on behalf of the Servicer. The Servicer shall be
entitled to enter into any agreement with a Subservicer for indemnification of
the Servicer by such Subservicer, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
(c) Assumption by Successor Servicer. In the event the Servicer shall for
any reason no longer be the Servicer (including by reason of an Event of
Default), the successor Servicer, on behalf of the Grantor Trustee, the
Indenture Trustee, the Securityholders and the Grantor Trust Holder pursuant to
Section 4.07 hereof, shall thereupon assume all of the rights and obligations of
the Servicer under each Subservicing Agreement that the Servicer may have
entered into, unless the successor Servicer elects to terminate any Subservicing
Agreement in accordance with its terms. The successor Servicer shall be deemed
to have assumed all of the Servicer's interest therein and to have replaced the
Servicer as a party to each Subservicing Agreement to the same extent as if the
Subservicing Agreements had been assigned to the assuming party, except that the
Servicer shall not thereby be relieved of any liability or obligations under the
Subservicing Agreements which accrued prior to the transfer of servicing to the
successor Servicer. The Servicer, at its expense and without right of
reimbursement therefor, shall, upon request of the successor Servicer, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement and the Home Loans then being serviced and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreements to the assuming
party.
(d) Enforcement of Subservicing. As part of its servicing activities
hereunder, the Servicer, for the benefit of the Grantor Trustee, the Grantor
Trust Holder, the Indenture Trustee and the Securityholders, shall enforce the
obligations of each Subservicer under the related Subservicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims and
the pursuit of other appropriate remedies, shall be in such form and carried out
to such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Home Loans. The
Servicer shall pay the costs of such enforcement at its own expense and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Home Loan or (ii) from a specific recovery of costs,
expenses or attorneys' fees against the party against whom such enforcement is
directed.
(e) Limitations on Parties. Any Subservicing Agreement that may be entered
into and any other transactions or services relating to the Home Loans involving
a Subservicer shall be deemed to be between the Subservicer and the Servicer
alone and none of the Grantor Trustee, the Owner Trustee, the Indenture Trustee,
the Securityholders or the Grantor Trust Holder shall be deemed parties thereto
or shall have any claims, rights, obligations, duties or liabilities with
respect to the Subservicer in its capacity as such, except as set forth in
Section 4.06(c).
(f) Subservicing Account. In those cases where a Subservicer receives or
collects any payments from a Home Loan, the Subservicer will be required to
establish and maintain one or more accounts (collectively, the "Subservicing
Account"). The Subservicing Account shall be an Eligible Account. The
Subservicer will be required to deposit into the Subservicing Account, no later
than the first Business Day after receipt, all proceeds of Home Loans received
by the Subservicer and remit such proceeds to the Servicer for deposit in the
Collection Account not later than the Business Day following receipt thereof by
the Subservicer. Notwithstanding anything in this Subsection to the contrary,
the Subservicer shall only be able to withdraw funds from the Subservicing
Account for the purpose of remitting such funds to the Servicer for deposit into
the Collection Account. The Servicer shall require the Subservicer to cause any
collection agent of the Subservicer to send a copy to the Servicer of each
statement of monthly payments collected by or on behalf of the Subservicer
within five Business Days after the end of every month, and the Servicer shall
compare the information provided in such reports with the deposits made by the
Subservicer into the Collection Account for the same period. The Servicer shall
be deemed to have received payments on the Home Loans on the date on which the
Subservicer has received such payments.
Section 4.07 Successor Servicers.
In the event that the Servicer is terminated pursuant to Section 10.01
hereof, or resigns pursuant to Section 9.04 hereof or otherwise becomes unable
to perform its obligations under this Agreement, the Grantor Trustee will become
the successor servicer or will appoint a successor servicer in accordance with
the provisions of Section 10.02 hereof; provided, however, that any successor
servicer, excluding the Grantor Trustee, shall satisfy the requirements of an
Eligible Servicer and shall be approved by the Rating Agencies.
Section 4.08 Collections from Insurance Policies.
Any amounts collected by the Servicer under any Insurance Policies shall be
paid over or applied by the Servicer as follows:
(i) In the case of amounts received in respect of any Home
Loan:
(A) for the restoration or repair of the
affected Mortgaged Property, in which event
such amounts shall be released to the
Obligor in accordance with the terms of the
related Debt Instrument or Mortgage, or
(B) to the extent not so used, in reduction of
the Principal Balance of the related Home
Loan, in which event such amounts shall be
deposited into the Collection Account,
unless the related Debt Instrument or Mortgage require a
different application, in which case such amounts shall be
applied in the manner provided therein; and
(ii) Subject to Section 4.10 and 4.11(c) hereof, in the case
of amounts received in respect of any Foreclosure Property,
for the restoration or repair of such Foreclosure Property,
unless the Servicer determines, consistent with the servicing
standard set forth in Section 4.01 hereof, that such
restoration or repair is not in the best economic interest of
the Grantor Trust Holder, in which event such amounts shall be
deposited into the Collection Account as a payment received
from the operation of such Foreclosure Property.
Section 4.09 Reports to the Securities and Exchange Commission;
144A Information.
(a) The Indenture Trustee shall, on behalf of the Issuer, cause to be filed
with the Securities and Exchange Commission all monthly reports on Form 8-K and
annual reports on Form 10-K required to be filed under the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission thereunder. Upon the request of the
Indenture Trustee, each of the Servicer and the Transferor shall cooperate with
the Indenture Trustee in the preparation of any such report and shall provide to
the Indenture Trustee in a timely manner all such information or documentation
as the Indenture Trustee may reasonably request in connection with the
performance of its duties and obligations under this Section 4.09. The Indenture
Trustee shall indemnify and hold harmless each of the Issuer and the Depositor
for any costs, expenses or liability arising as a result of the failure of the
Indenture Trustee to perform its duties and obligations under this Section 4.09.
(b) The Servicer shall provide to the Indenture Trustee, if requested,
information regarding the Class B-2 Notes and the Home Loans and such other
information as the Indenture Trustee shall be required to deliver to any holder
of a Class B-2 Note and any prospective transferee designated by any such holder
to satisfy the condition of eligibility set forth in Rule 144A(d)(4) under the
Securities Act.
Section 4.10 Recovery from Defaulted Home Loans and Liquidated Home Loans.
(a) General Standard. If any Home Loan becomes a Defaulted Home Loan, then
the Servicer, in accordance with the servicing standard in Section 4.01(a),
shall take such action as it shall deem to be in the best interest of the
Grantor Trust Holder and Securityholders, including but not limited to (i)
repurchasing or substituting such Defaulted Home Loan pursuant to Section 3.05,
(ii) accepting short payoffs or short sales, (iii) entering into assumptions and
modifications, (iv) referring such Defaulted Home Loan to a collection agency or
attorney, or pursuing collection litigation or alternative court proceedings to
foreclosure actions, (v) selling such Defaulted Home Loan to another person, or
(vi) foreclosing or proceeding against the Mortgaged Property securing such
Defaulted Home Loan. The Servicer shall be acting in the best interests of the
Grantor Trust Holder and Securityholders, when the Servicer, in accordance with
the Accepted Servicing Procedures, undertakes actions to collect a Defaulted
Home Loan that have a higher likelihood of a reasonable recovery within a
shorter time period, and foregoes taking actions that have a lower likelihood of
a larger recovery over a longer time period. If with respect to a Defaulted Home
Loan the Servicer decides not to proceed against the Mortgaged Property or
Obligor, as applicable, then the Servicer shall determine in accordance with the
Accepted Servicing Procedures that there is not a reasonable likelihood of (A)
recovering an economically significant amount attributable to the outstanding
interest and principal owing on such Home Loan as a result of such proceeding,
in excess of (B) the costs and expenses to obtain such recovery (including
without limitation any Servicing Advances and, if applicable, the outstanding
indebtedness of all Superior Liens), and in relation to (C) the expected timing
of such recovery therefrom. If the Servicer makes a determination not to proceed
either against the Mortgaged Property or the Obligor, then the Servicer shall
give notice to such effect to the Grantor Trustee and the Indenture Trustee.
Neither the Grantor Trustee, the Indenture Trustee, the Issuer nor the
Depositor shall have any responsibility or obligation to review or verify any
determination or approve any actions, made by the Servicer pursuant to this
Section 4.10.
(b) Modifications of Defaulted Home Loans. Notwithstanding Section 4.01(c)
hereof, in accordance with Section 4.10(a), the Servicer may modify, vary or
waive the terms of any Defaulted Home Loan in a manner that will be likely to
obtain a reasonable recovery of net proceeds therefrom under the circumstances,
including without limitation the deferment or forgiveness of any principal or
interest payments due or to become due thereon; provided, however, that no such
modification, variation or waiver of a Home Loan shall involve the execution by
the related Obligor of a new Debt Instrument. If a Defaulted Home Loan is
modified pursuant to this Section in a manner that releases a portion of the
Principal Balance thereof, then such released amount shall be included as "Net
Loan Losses" hereunder.
(c) Short Sales and Substitutions of Collateral. In accordance with the
Accepted Servicing Procedures, the Servicer may permit an Obligor, who is
selling their Mortgaged Property that constitutes such Obligor's principal
residence and relocating to another location, to substitute as collateral for
the related Home Loan the Obligor's new single family residence in place of the
Mortgaged Property being sold or any other real or personal property of the
Obligor, which may include an interim substitution of personal property pending
the Obligor's acquisition of a new residence. Other than the pledge of any
incident or ancillary personal property in connection with the pledge of real
property, any pledge of personal property by an Obligor as for the related Home
Loan pursuant to this Subsection ("Substitute Collateral") shall be limited to
personal property consisting of one or more of the following types: (1) a
deposit account at any federally insured depository institution; (2) a
certificate of deposit or time deposit of any federally insured depository
institution; or (3) such other types of personal property that have been
approved by the Grantor Trustee, the Indenture Trustee and each Rating Agency as
a form of Substitute Collateral hereunder, which may include an instrument
(within the meaning of Section 9-105(1) of the UCC) or a security (within the
meaning of Section 8-102(1) of the UCC). Under certain circumstances, if such
Obligor has received net proceeds from the sale of the prior residence that will
not be applied to the purchase of the new residence, then the Servicer, in its
discretion, may require that such Obligor either (i) make a partial prepayment
in reduction of the principal balance of the Home Loan, or (ii) place such funds
into a depository account or certificate of deposit as collateral for the
related Home Loan. The Servicer shall undertake all actions, as deemed necessary
or appropriate by the Servicer to effectuate the substitution of any real or
personal property by an Obligor as collateral for the related Home Loan pursuant
to this Subsection and the release of the then existing Mortgaged Property
including all such actions to effectuate: (1) the inclusion of the security
interests in such Substitute Collateral as part of the Grantor Trust Estate; (2)
the delivery to the Custodian for inclusion in the related Grantor Trustee's
Home Loan File of an appropriate security agreement with respect to such
Substitute Collateral (including a new Mortgage with respect to any real
property being substituted); (3) the delivery and pledge of the security
interests in such Substitute Collateral to the Grantor Trustee under the Grantor
Trust Agreement, including the delivery of any substitute Collateral consisting
of primarily personal property in the same manner as provided by the definition
of "Delivery" in Section 1.01 hereof; and (4) any other actions as reasonably
requested by the Grantor Trustee or Indenture Trustee to accomplish such
substitution of Substitute Collateral. In addition, if an Obligor is selling
their Mortgaged Property and the circumstances relating to such sale involve
compensating factors or a distressed situation, in each case as determined
solely by the Servicer, then in accordance with the Accepted Servicing
Procedures the Servicer may: (i) accept a partial prepayment by the Obligor of
the Principal Balance in consideration for a release of the Mortgaged Property
as security for the Home Loan, but with a continuation of the Debt Instrument
and the Home Loan on an unsecured basis (i.e., a "short sale"); or (ii) accept a
settlement involving a partial payment by the Obligor in consideration for the
termination of the Home Loan, the cancellation of the Debt Instrument and the
release of the Mortgaged Property (i.e., a "short pay-off").
(d) Sale and Charge-Off of Defaulted Home Loans. In accordance with Section
4.10(a) hereof, the Servicer, in its discretion, shall have the power and
authority to sell any Defaulted Home Loan or Liquidated Home Loan, on behalf of
the Grantor Trustee for the benefit of the Grantor Trust Holder and the
Securityholders, to one or more Persons in a manner that will be likely to
obtain a reasonable recovery of net proceeds therefrom under the circumstances.
Notwithstanding the preceding sentence, no Affiliate of the Servicer shall have
the right to purchase any Defaulted Home Loan, unless at the time of such
purchase none of the original ratings assigned to the Notes by any Rating Agency
have been downgraded, or if a ratings downgrade has occurred each Rating Agency
consents to such purchase. The purchase price paid for any Defaulted Home Loan
sold to an Affiliate of the Servicer shall not be less than the price that, in
the reasonable judgment of the Servicer, would have been paid for such Defaulted
Home Loan by Person who is not an Affiliate of the Servicer. The Servicer shall
promptly deposit the Net Liquidation Proceeds or Post-Liquidation Proceeds, as
applicable, from the sale of any Defaulted Home Loans or Liquidated Home Loans
into the Collection Account in accordance with Section 5.01 hereof.
(e) Defaulted Superior Liens. If the Servicer is notified that any
lienholder under a Superior Lien has accelerated or intends to accelerate the
obligations secured by such Superior Lien, or has declared or intends to declare
a default under the related mortgage or the promissory note secured thereby, or
has filed or intends to file an election to have any Mortgaged Property sold or
foreclosed, then, in accordance with the Section 4.10(a) hereof and on behalf of
the Grantor Trust and the Grantor Trustee, the Servicer shall take all
reasonable actions that are necessary to protect the interests of the Grantor
Trust Holder and/or to preserve the security of the related Home Loan. The
Servicer shall promptly notify the Grantor Trustee if it determines not to take
action with respect to such Superior Lien.
(f) Foreclosure Actions. In accordance with the criteria for proceeding
against the Mortgaged Property set forth in Section 4.10(a) hereof, unless
otherwise prohibited by applicable law or court or administrative order, the
Servicer, on behalf of the Grantor Trust Holders, may, at any time, institute
foreclosure proceedings to the extent permitted by law, exercise any power of
sale to the extent permitted by law, obtain a deed in lieu of foreclosure, or
otherwise acquire possession of or title to the related Mortgaged Property, by
operation of law or otherwise. In accordance with Section 4.10(a) hereof, and
(i) in the case of any Mortgage in a first lien position the Servicer shall, or
(ii) in the case of any Mortgage in a subordinate lien position the Servicer
shall have the option to, institute foreclosure proceedings, repossess, exercise
any power of sale to the extent permitted by law, obtain a deed in lieu of
foreclosure or otherwise acquire possession of or title to any Mortgaged
Property, by operation of law or otherwise; provided, however, that in each case
the Servicer shall have determined there is a reasonable likelihood of (A)
recovering an economically significant amount attributable to the outstanding
interest and principal owing on such Home Loan as a result of such actions, in
excess of (B) the costs and expenses to obtain such recovery (including without
limitation any Servicing Advances and, if applicable, the outstanding
indebtedness of all Superior Liens), and in relation to (C) the expected timing
of such recovery therefrom.
Prior to acquiring any Foreclosure Property, however, the Servicer shall
cause a review to be performed, in accordance with the Accepted Servicing
Procedures, on the related Mortgaged Property by a company such as Equifax, Inc.
or Toxicheck, and the scope of such review shall be limited to the review of
public records and documents for indications that such Mortgaged Property has on
it, has under it, or is near hazardous or toxic material or waste. If such
review reveals that the Mortgaged Property has on it, under it or is near
hazardous or toxic material or waste or reveals any other environmental problem,
and the Servicer decides to proceed with the acquisition of such Mortgaged
Property, then the Servicer shall provide to the Grantor Trustee and the
Indenture Trustee an Officer's Certificate with a copy of the related report
that substantiates such decision. Such Officer's Certificate shall provide that
based on an analysis of all available information in the report (including
potential clean up costs and liability claims) at the time it is the best
judgment of the Responsible Officer making such certification that such
foreclosure shall increase Net Liquidation Proceeds to the Grantor Trust. Upon
the receipt of any such Officer's Certificate, the Grantor Trustee, in its
reasonable discretion, shall determine whether to take tile to such Mortgaged
Property. The Grantor Trustee shall promptly forward such report and Officer's
Certificate to the Grantor Trust Holder.
(f) Powers of Attorney. The Grantor Trustee shall furnish the Servicer,
within 5 days after request of the Servicer therefor, any powers of attorney and
other documents necessary and appropriate to carry out its duties under Sections
4.10 and 4.11 hereof, including any documents or powers of attorney necessary to
foreclose any Mortgage. The forms of any such powers or documents shall be
appended to such requests.
(g) Post Liquidation Proceeds. During any Due Period occurring after a Home
Loan becomes a Liquidated Home Loan, the Servicer shall deposit into the
Collection Account any proceeds received by it with respect to such Liquidated
Home Loan or the related Foreclosure Property ("Post-Liquidation Proceeds").
Section 4.11 Title, Management and Disposition of Foreclosure Property.
(a) General Standard. If any Mortgaged Property is acquired in foreclosure
or by deed in lieu of foreclosure (a "Foreclosure Property") pursuant to Section
4.10, the deed or certificate of sale shall be taken in the name of the Grantor
Trustee for the benefit of the Grantor Trust Holder. The Servicer, or its
agents, shall manage, conserve, protect, operate, market, sell and liquidate
each Foreclosure Property for the Grantor Trustee and the Grantor Trust Holder
solely for the purpose of the prudent and prompt disposition and sale of such
Foreclosure Property in accordance with the Accepted Servicing Procedures. The
Servicer shall be responsible for all costs and expenses incurred by it with
respect to any Foreclosure Property; provided, however, that such costs and
expenses will be recoverable as Servicing Advances by the Servicer as
contemplated herein.
(b) Sale of Foreclosure Property. The Servicer may offer to sell to any
Person any Foreclosure Property, if and when the Servicer determines, in a
manner consistent with the Accepted Servicing Procedures, that such a sale would
be in the best interests of the Grantor Trust. The Servicer shall give the
Grantor Trustee and the Indenture Trustee notice of its intention to sell any
Foreclosure Property and shall accept the highest bid received from any Person
that is determined to be a fair price for such Foreclosure Property by the
Servicer, if the highest bidder is a Person other than an Affiliate of the
Servicer, or by an Independent appraiser retained by the Servicer, if the
highest bidder is an Affiliate of the Servicer. In the absence of any bid
determined to be fair as aforesaid, the Servicer shall offer the affected
Foreclosure Property for sale to any Person, other than an Affiliate of the
Servicer, in a commercially reasonable manner for a period of not less than 10
or more than 30 days, and shall accept the highest cash bid received therefor in
excess of the highest bid previously submitted. If no such bid is received, any
Affiliate of the Servicer may resubmit its original bid and the Servicer shall
accept the highest outstanding cash bid, regardless of from whom received. No
Affiliate of the Servicer shall be obligated to submit a bid to purchase any
Foreclosure Property and, notwithstanding anything to the contrary herein,
neither the Grantor Trustee, the Owner Trustee or the Indenture Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Foreclosure Property pursuant hereto.
Subject to the provisions of Section 4.10 hereof, the Servicer shall act on
behalf of the Grantor Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Foreclosure
Property, including the collection of all amounts payable in connection
therewith. Any sale of a Foreclosure Property shall be without recourse to the
Grantor Trustee, the Servicer or the Grantor Trust and, if consummated in
accordance with the terms of this Agreement, neither the Servicer nor the
Grantor Trustee shall have any liability to any Grantor Trust Holder or
Securityholder with respect to the purchase price therefor accepted by the
Servicer or the Grantor Trustee.
(c) Restoration of Foreclosure Property. If a Foreclosure Property has
suffered damage and the complete restoration of such property is not fully
reimbursable by the proceeds from any hazard insurance policies, then the
Servicer shall not be required to make any Servicing Advance for the restoration
of such Foreclosure Property, unless in the reasonable judgment of the Servicer,
as evidenced by an Officer's Certificate, such restoration is likely to increase
the net proceeds from the liquidation of the related Home Loan after
reimbursement for all Servicing Advances. (See also Section 4.08 regarding
collections from insurance policies.)
(d) Contracting for Operation of Foreclosure Property. In accordance with
the Accepted Servicing Procedures, the Servicer may contract with any
independent contractor for the operation, management, marketing or sale of any
Foreclosure Property; provided, however, that the terms and conditions of any
such contract shall not be inconsistent with this Agreement; provided further
that none of the provisions of this Section 4.11 relating to any such contract
or to actions taken through any such independent contractor shall be deemed to
relieve the Servicer of any of its duties and obligations hereunder with respect
to the operation, management, marketing or sale of any such Foreclosure
Property. The Servicer shall be entitled to enter into any agreement with any
independent contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such independent
contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall not be liable for any fees owed by it
to any such independent contractor and any amounts so expended shall be deemed
Servicing Advances.
ARTICLE V
ESTABLISHMENT OF TRUST ACCOUNTS
Section 5.01 Collection Account and Note Payment Account.
(a) (1) Establishment of Collection Account. The Servicer, for the
benefit of the Grantor Trust Holder, shall cause to be established and
maintained one or more Collection Accounts (collectively, the
"Collection Account"), which shall be separate Eligible Accounts and
may be interest-bearing, entitled "Collection Account, U.S. Bank
National Association, as Indenture Trustee, in trust for the Empire
Funding Home Loan Asset Backed Notes, Series 1998-2". The Collection
Account may be maintained with the Indenture Trustee or any other
depository institution which satisfies the requirements set forth in
the definition of Eligible Account. The creation of any Collection
Account other than one maintained with the Indenture Trustee shall be
evidenced by a letter agreement between the Servicer and the
depository institution acceptable to the Indenture Trustee. A copy of
such letter agreement shall be furnished to the Indenture Trustee and,
upon request of any Grantor Trust Holder, to such Grantor Trust
Holder. Funds in the Collection Account shall be invested in
accordance with Section 5.03 hereof.
The Collection Account shall be established, as of the Closing Date, with
the Indenture Trustee as an Eligible Account pursuant to the definition thereof.
The Collection Account may, upon written notice to the Grantor Trustee and the
Indenture Trustee, be transferred to a different depository institution so long
as such transfer is to an Eligible Account acceptable to the Indenture Trustee.
The Depositor hereby collaterally assigns the Collection Account to the Issuer
in connection with the sale of the Grantor Trust Certificate to the Issuer
hereunder.
(2) Establishment of Note Payment Account. No later than the
Closing Date, the Servicer, for the benefit of the Noteholders, shall
cause to be established and maintained with the Indenture Trustee one
or more Note Payment Accounts (collectively, the "Note Payment
Account"), which shall be separate Eligible Accounts and may be
interest-bearing, entitled "Note Payment Account, U.S. Bank National
Association, as Indenture Trustee, in trust for the Empire Funding
Home Loan Asset Backed Notes, Series 1998-2". Funds in the Note
Payment Account shall be invested in accordance with Section 5.03
hereof.
(b) (1) Deposits to Collection Account. The Servicer shall use its
best efforts to deposit or cause to be deposited (without
duplication), within two (2) Business Days after receipt thereof, into
the Collection Account and retain therein in trust for the benefit of
the Grantor Trust Holder:
(i) all payments of principal and interest on the Home Loans
collected after the Cut-Off Date, including any amounts required
to be deposited in the Collection Account pursuant to Section
2.07(b)(vii)(B)(IV) of the Grantor Trust Agreement, but excluding
73% of the interest collected on the Home Loans during the first
Due Period, which shall be retained by the Transferor;
(ii) all Net Liquidation Proceeds pursuant to Section 4.11
hereof;
(iii) all Insurance Proceeds;
(iv) all Released Mortgaged Property Proceeds;
(v) any amounts payable in connection with the repurchase of
any Home Loan and the amount of any Substitution Adjustment
pursuant to Section 2.06 of the Grantor Trust Agreement and
Section 3.05 hereof;
(vi) the deposit of the Termination Price under Section
11.01 hereof; and
(vii) interest and gains on funds held in the Collection
Account.
The Servicer shall be entitled to retain and not deposit into the
Collection Account any amounts received with respect to a Home Loan that
constitute additional servicing compensation pursuant to Section 7.03 hereof,
and such amounts retained by the Servicer during a Due Period shall be excluded
from the calculation of the Servicing Compensation that is distributable to the
Servicer from the Note Payment Account on the next Payment Date following such
Due Period.
(2) Deposits to Note Payment Account. On the second Business Day
prior to each Payment Date, the Indenture Trustee (based on
information provided by the Servicer for such Payment Date) shall
withdraw from the Collection Account the Available Collection Amount
as a distribution in respect of the Grantor Trust Certificate pursuant
to Section 5.02 of the Grantor Trust Agreement and deposit such into
the Note Payment Account for such Payment Date.
(3) Withdrawals from Collection Account. The Indenture Trustee,
at the direction of the Servicer, shall also make the following
withdrawals from the Collection Account, in no particular order of
priority:
(i) to withdraw any amount not required to be deposited
in the Collection Account or deposited therein in error;
(ii) to withdraw any Servicing Advance Reimbursement
Amounts;
(iii) to clear and terminate the Collection Account in
connection with the termination of this Agreement; and
(iv) to make the payments set forth in Section 9.01(e)
hereof.
(c) Withdrawals from Note Payment Account. To the extent funds are
available in the Note Payment Account, the Indenture Trustee (based on the
information provided by the Servicer contained in the Servicer's Monthly
Remittance Report for such Payment Date) shall make withdrawals therefrom by
9:00 a.m. (New York City time) on each Payment Date, for application in the
following order of priority:
(i) to distribute on such Payment Date the following
amounts pursuant to the Indenture in the following order: (a) to
the Servicer on behalf of the Grantor Trustee, an amount equal to
(i) the Servicing Compensation (net of any amounts retained prior
to deposit into the Collection Account pursuant to subsection
(b)(1) above) and all unpaid Servicing Compensation from prior
Payment Dates and (ii) all Nonrecoverable Servicing Advances not
previously reimbursed, (b) to the Indenture Trustee, an amount
equal to the Indenture Trustee Fee and all unpaid Indenture
Trustee Fees from prior Payment Dates, (c) to the Owner Trustee,
an amount equal to the Owner Trustee Fee and all unpaid Owner
Trustee Fees from prior Due Periods, (d) to the Custodian on
behalf of the Grantor Trustee, an amount equal to the Custodian
Fee, if any, and all unpaid Custodian Fees from prior Payment
Dates, and (e) to the Grantor Trustee, an amount equal to the
Grantor Trustee Fee, if any, and all unpaid Grantor Trustee Fees
from prior Payment Dates; and
(ii) to deposit into the Certificate Distribution
Account the applicable portions of the Available Payment Amount
distributable in respect of the Residual Interest calculated
pursuant to subsections (d) and (e) of this Section 5.01 on such
Payment Date.
Notwithstanding that the Notes have been paid in full, the Indenture
Trustee and the Servicer shall continue to maintain the Collection Account and
the Note Payment Account hereunder until the Class Principal Balance of each
Class of Notes has been reduced to zero.
(d) On each Payment Date, the Indenture Trustee (based on the information
provided by the Servicer contained in the Servicer's Monthly Remittance Report
for such Payment Date) shall distribute the Regular Payment Amount from the Note
Payment Account (in the case of all amounts distributable to Noteholders) and
from the Certificate Distribution Account (in the case of all amounts
distributable to Certificateholders), in the following order of priority:
(i) to the holders of the Senior Notes pro rata, their
respective portions of the Senior Noteholders Interest Payment
Amount for such Payment Date;
(ii) sequentially, to the holders of the Class M-1 and
Class M-2 Notes, in that order, their respective portions of the
Mezzanine Noteholders' Interest Payment Amount for such Payment
Date;
(iii) sequentially, to the holders of the Class B-1 and
Class B-2 Notes, in that order, their respective portions of the
Subordinate Noteholders' Interest Payment Amount for such Payment
Date;
(iv) (a) to pay principal of the Class A-6 Notes in an
amount equal to the Class A-6 Lockout Regular Payment Amount and
then (b) sequentially, to pay principal of the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5 and Class A-6 Notes, in that
order, until the respective Class Principal Balances thereof are
reduced to zero, the amount necessary to reduce the aggregate
Class Principal Balance of such Class A Notes (other than the
Class A-IO Notes) to the Senior Optimal Principal Balance for
such Payment Date; provided, however, that notwithstanding the
payment priorities set forth in clauses (a) and (b) above, on
each Payment Date occurring on or after the reduction of the
Class Principal Balances of the Class M-1 Notes, Class M-2 Notes,
Class B-1 Notes and Class B-2 Notes to zero through the
application of Allocable Loss Amounts, payments shall be made
among the then outstanding Class A Notes (other than the Class
A-IO Notes) pro rata based on their respective Class Principal
Balances and not in accordance with the priorities set forth in
clauses (a) and (b) above;
(v) sequentially, to pay principal of the Class M-1
Notes and Class M-2 Notes in that order, the amount necessary to
reduce the Class Principal Balances thereof to the Class M-1
Optimal Principal Balance and the Class M-2 Optimal Principal
Balance, respectively, for such Payment Date;
(vi) sequentially, to pay principal of the Class B-1
and Class B-2 Notes, in that order, the amount necessary to
reduce the Class Principal Balances thereof to the Class B-1
Optimal Principal Balance and the Class B-2 Optimal Principal
Balance, respectively, for such Payment Date;
(vii) to the appropriate Class of Notes, an amount
equal to the Overcollateralization Deficiency Amount, if any, in
the priorities and amounts specified in Section 5.01(e) hereof
(after giving effect to payments made pursuant to clauses (i)
through (vi) above), and thereafter sequentially, to the Class
M-1 Notes, Class M-2 Notes, Class B-1 and the Class B-2 Notes, in
that order, until their respective Loss Reimbursement
Deficiencies, if any, have been paid in full (first, to the
reimbursement of Allocable Loss Amounts, until completely
reimbursed and then, to any accrued interest thereon); and
(ix) any remaining amount to the holders of the
Residual Interest Certificates.
(e) On each Payment Date, the Indenture Trustee (based on the information
provided by the Servicer contained in the Servicer's Monthly Remittance Report
for such Payment Date) shall distribute the Excess Spread, if any, in the
following order of priority (in each case after giving effect to all payments
specified in Section 5.01(d) hereof):
(i) in an amount up to the Overcollateralization Deficiency Amount,
if any, as follows:
(A) to pay principal of the Class A-6 Notes in an amount equal
to the Class A-6 Lockout Excess Spread Payment Amount and
then
(B) as follows:
(a) sequentially, to pay principal of the Class A-1, Class
A-2, Class A-3, Class A-4 Notes, Class A-5 Notes and
Class A-6 Notes, in that order, until the respective
Class Principal Balances thereof are reduced to zero
and until the aggregate of their Class Principal
Balances have been reduced to the Senior Optimal
Principal Balance for such Payment Date;
(b) sequentially, to pay principal of the Class M-1 Notes
and Class M-2 Notes, in that order, until the
respective Class Principal Balances thereof have been
reduced to the Class M-1 Optimal Principal Balance and
Class M-2 Optimal Principal Balance, respectively, for
such Payment Date; and
(c) sequentially, to pay principal of the Class B-1 Notes
and Class B-2 Notes, until the respective Class
Principal Balances thereof have been reduced to the
Class B-1 Optimal Principal Balance and the Class B-2
Optimal Principal Balance for such Payment Date; and
(ii) sequentially, to the Class M-1 Notes, the Class M-2 Notes, Class
B-1 Notes and the Class B-2 Notes, in that order, until their
respective Loss Reimbursement Deficiencies, if any, have been
paid in full (in the case of the Class M-1 Notes and Class M-2
Notes: first, to the reimbursement of Allocable Loss Amounts
until completely reimbursed and, then, to any accrued interest
thereon);
(iii) to the Class A-IO Notes, for any amounts payable on account of
interest that would have been payable on the Class Notional
Balance thereof but for the reduction, if any, of such Class
Notional Balance prior to August 25, 2000; and
(iv) any remaining amount to the holders of the Residual Interest
Certificates.
Section 5.02 Certificate Distribution Account.
(a) Establishment of Certificate Distribution Account. No later than the
Closing Date, the Servicer, for the benefit of the Certificateholders, shall
cause to be established and maintained with the Indenture Trustee for the
benefit of the Owner Trustee on behalf of the Certificateholders one or more
Certificate Distribution Accounts (collectively, the "Certificate Distribution
Account"), which shall be separate Eligible Accounts and may be
interest-bearing, entitled "Certificate Distribution Account, U.S. Bank National
Association, as Indenture Trustee, in trust for the Empire Funding Home Loan
Owner Trust Series 1998-2". Funds in the Certificate Distribution Account shall
be invested in accordance with Section 5.03 hereof.
(b) Distributions. On each Payment Date the Indenture Trustee shall
withdraw from the Note Payment Account all amounts required to be deposited into
the Certificate Distribution Account with respect to such Payment Date pursuant
to Section 5.01(c)(ii) hereof and, on behalf of the Owner Trustee, shall deposit
such amounts into the Certificate Distribution Account. The Indenture Trustee
shall make payments of all remaining amounts on deposit in the Note Payment
Account to the holders of the Notes to the extent of amounts due and unpaid on
the Notes for principal thereof and interest thereon. The Indenture Trustee, on
behalf of the Owner Trustee shall distribute all amounts on deposit in the
Certificate Distribution Account to the holders of the Residual Interest
Certificates.
(c) All payments made on each Class of Notes on each Payment Date will be
made on a pro rata basis among the Noteholders of record of such Class of Notes
on the next preceding Record Date based on the Percentage Interest represented
by their respective Notes, without preference or priority of any kind, and,
except as otherwise provided in the next succeeding sentence, shall be made by
wire transfer of immediately available funds to the account of such Noteholder,
if such Noteholder shall own of record Notes in original Denominations
aggregating at least $250,000 and shall have so notified the Indenture Trustee,
and otherwise by check mailed to the address of such Noteholder appearing in the
Notes Register. The final payment on each Note will be made in like manner, but
only upon presentment and surrender of such Note at the location specified in
the notice to Noteholders of such final payment.
(d) All distributions made on the Residual Interest Certificates on each
Payment Date will be made pro rata among the holders of the Residual Interest
Certificates of record on the next preceding Record Date based on their
percentage holdings in the Residual Interest, without preference or priority of
any kind, and, except as otherwise provided in the next succeeding sentence,
shall be made by wire transfer of immediately available funds to the account of
each such holder, if such holder shall own of record a Residual Interest
Certificate in an original denomination aggregating at least a 50% holding of
the Residual Interest and shall have so notified the Indenture Trustee at least
5 Business Days prior thereto, and otherwise by check mailed to the address of
such Residual Interest holder appearing in the Certificate Register. The final
distribution on each Residual Interest Certificate will be made in like manner,
but only upon presentment and surrender of such Residual Interest Certificate at
the location specified in the notice to holders of the Residual Interest
Certificates of such final distribution. Any amount distributed to the holders
of the Residual Interest Certificates on any Payment Date shall not be subject
to any claim or interest of holders of the other Classes of Notes.
Section 5.03 Trust Accounts; Trust Account Property.
(a) Control of Trust Accounts. Each of the Trust Accounts (or interests
therein) established hereunder has been pledged by the Issuer to the Indenture
Trustee under the Indenture and shall be subject to the lien of the Indenture.
In addition to the provisions hereunder, each of the Trust Accounts shall also
be established and maintained pursuant to the Indenture. Amounts distributed
from each Trust Account in accordance with the Indenture and this Agreement
shall be released from the lien of the Indenture upon such distribution
thereunder or hereunder. The Indenture Trustee shall possess all right, title
and interest in and to all funds on deposit from time to time in the Trust
Accounts (other than the Certificate Distribution Account) and in all proceeds
thereof (including all income thereon) and all such funds, investments, proceeds
and income shall be part of the Trust Account Property and the Owner Trust
Estate. If, at any time, any Trust Account ceases to be an Eligible Account, the
Indenture Trustee (or the Servicer on its behalf) shall, within ten Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) (i) establish a new Trust Account as an Eligible
Account, (ii) terminate the ineligible Trust Account, and (iii) transfer any
cash and investments from such ineligible Trust Account to such new Trust
Account.
With respect to the Trust Accounts (other than the Certificate Distribution
Account), the Indenture Trustee agrees, by its acceptance hereof, that each such
Trust Account shall be subject to the sole and exclusive custody and control of
the Indenture Trustee (in the case of the Collection Account, on behalf of the
Grantor Trustee) for the benefit of the Noteholders and the Issuer, as the case
may be, and the Indenture Trustee shall have sole signature and withdrawal
authority with respect thereto.
In addition to this Agreement and the Indenture, the Certificate
Distribution Account established hereunder shall also be subject to and
established and maintained in accordance with the Owner Trust Agreement. Subject
to rights of the Indenture Trustee hereunder and under the Indenture, the Owner
Trustee shall possess for the benefit of the Certificateholders all right, title
and interest in all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof (including all income thereon)
and all such funds, investments, proceeds and income shall be part of the Trust
Account Property and the Owner Trust Estate. Subject to the rights of the
Indenture Trustee, the Owner Trustee agrees, by its acceptance hereof, that such
Certificate Distribution Account shall be subject to the sole and exclusive
custody and control of the Owner Trustee for the benefit of the Issuer and the
parties entitled to payments and distributions therefrom, including, without
limitation, the Certificateholders, and the Owner Trustee shall have sole
signature and withdrawal authority with respect to the Certificate Distribution
Account. Notwithstanding the preceding, the distribution of amounts from the
Certificate Distribution Account in accordance with Section 5.01(c)(ii) hereof
shall also be made for the benefit of the Indenture Trustee (including without
limitation with respect to its duties under the Indenture and this Agreement
relating to the Owner Trust Estate), and the Indenture Trustee (in its capacity
as Indenture Trustee) shall have the right, but not the obligation, to take
custody and control of the Certificate Distribution Account and to cause the
distribution of amounts therefrom in the event that the Owner Trustee fails to
distribute such amounts in accordance with subsections (c) and (d) of Section
5.02.
The Servicer shall have the power, revocable by the Indenture Trustee or by
the Owner Trustee with the consent of the Indenture Trustee, to instruct the
Indenture Trustee or Owner Trustee to make withdrawals and payments from the
Trust Accounts for the purpose of permitting the Servicer to carry out its
duties hereunder or permitting the Indenture Trustee or Owner Trustee to carry
out their respective duties herein or under the Indenture, the Owner Trust
Agreement or the Grantor Trust Agreement, as applicable.
(b) (1) Investment of Funds. So long as no Event of Default
shall have occurred and be continuing, the funds held in any Trust
Account may be invested (to the extent practicable and consistent with
any requirements of the Code) in Permitted Investments, as directed by
the Transferor in writing or by telephone or facsimile transmission
confirmed in writing by the Servicer. In any case, funds in any Trust
Account must be available for withdrawal without penalty, and any
Permitted Investments must mature or otherwise be available for
withdrawal, not later than the Business Day immediately preceding the
Payment Date next following the date of such investment and shall not
be sold or disposed of prior to its maturity subject to subsection
(b)(2) of this Section. All interest and any other investment earnings
on amounts or investments held in any Trust Account shall be deposited
into such Trust Account immediately upon receipt by the Indenture
Trustee. All Permitted Investments in which funds in any Trust Account
(other than the Certificate Distribution Account) are invested must be
held by or registered in the name of "U.S. Bank National Association,
as Indenture Trustee, in trust for the Empire Funding Home Loan Asset
Backed Notes, Series 1998-2". While the Indenture Trustee holds the
Certificate Distribution Account, on behalf of the Owner Trustee, all
Permitted Investments in which funds in the Certificate Distribution
Account are invested shall be held by or registered in the name of
"U.S. Bank National Association, on behalf of the Owner Trustee, in
trust for the Empire Funding Home Loan Asset Backed Notes, Series
1998-2".
(2) Insufficiency and Losses in Trust Accounts. If any amounts
are needed for disbursement from any Trust Account held by or on behalf
of the Indenture Trustee and sufficient uninvested funds are not
available to make such disbursement, the Indenture Trustee shall cause
to be sold or otherwise converted to cash a sufficient amount of the
investments in such Trust Account. The Indenture Trustee shall not be
liable for any investment loss or other charge resulting therefrom,
unless such loss or charge is caused by the failure of the Indenture
Trustee or Owner Trustee, respectively, to perform in accordance with
this Section 5.03.
If any losses are realized in connection with any investment in any Trust
Account pursuant to this Agreement and the Indenture, then the Transferor shall
deposit the amount of such losses (to the extent not offset by income from other
investments in such Trust Account) into such Trust Account immediately upon the
realization of such loss. All interest and any other investment earnings on
amounts held in any Trust Account shall be the income of the Issuer (or, when
there is a single beneficial owner of a Residual Interest Certificate, such
owner), and for federal and state income tax purposes the Issuer (or such single
beneficial owner) shall be the owner (or beneficial owner in the case of the
Collection Account).
(c) Subject to section 6.01 of the Indenture, the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in any Trust
Account held by the Indenture Trustee resulting from any investment loss on any
Permitted Investment included therein (except to the extent that the Indenture
Trustee is the obligor and has defaulted thereon).
(d) With respect to the Trust Account Property, the Indenture Trustee
acknowledges and agrees that:
(1) any Trust Account Property that is held in deposit
accounts shall be held solely in the Eligible Accounts, subject to the
last sentence of subsection (a) of this Section 5.03; and each such
Eligible Account shall be subject to the sole and exclusive dominion,
custody and control of the Indenture Trustee; and, without limitation
on the foregoing, the Indenture Trustee shall have sole signature
authority with respect thereto;
(2) any Trust Account Property that constitutes Physical
Property shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" in Section 1.1 hereof and
shall be held, pending maturity or disposition, solely by the Indenture
Trustee or a financial intermediary (as such term is defined in section
8-313(4) of the UCC) acting solely for the Indenture Trustee;
(3) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" in Section 1.1 hereof and shall be maintained
by the Indenture Trustee, pending maturity or disposition, through
continued book-entry registration of such Trust Account Property as
described in such paragraph; and
(4) any Trust Account Property that is an "uncertificated
security" under Article VIII of the UCC and that is not governed by
clause (3) above shall be delivered to the Indenture Trustee in
accordance with paragraph (c) of the definition of "Delivery" in
Section 1.1 hereof and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through continued registration of the
Indenture Trustee's (or its nominee's) ownership of such security.
(e) The Servicer shall have the power, revocable by the Indenture Trustee
or by the Issuer with the consent of the Indenture Trustee, to instruct the
Indenture Trustee to make withdrawals and payments from the Trust Accounts for
the purpose of permitting the Servicer or the Issuer to carry out their
respective duties hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
Section 5.04 Allocation of Losses.
(a) In the event that Net Liquidation Proceeds, Insurance Proceeds or
Released Mortgaged Property Proceeds on a Liquidated Home Loan are less than the
related Principal Balance plus accrued interest thereon, or any Obligor makes a
partial payment of any Monthly Payment due on a Home Loan, such Net Liquidation
Proceeds, Insurance Proceeds, Released Mortgaged Property Proceeds or partial
payment shall be applied to payment of the related Debt Instrument, first, to
interest accrued at the Home Loan Interest Rate and, then, to principal.
(b) On any Payment Date, any Allocable Loss Amounts shall be applied to the
reduction of the Class Principal Balances of the Class B-2, the Class B-1 Notes,
the Class M-1 Notes and Class M-2 Notes in accordance with the Allocable Loss
Amount Priority; provided however, on the date on which the Class Principal
Balance of the Class B-2 Notes would be reduced to zero by the allocation of
losses on the Home Loans pursuant to this Section 5.04(b), such losses will be
applied to reduce the Subordinate Noteholders' Monthly Interest Payment Amount
with respect to the Class B-2 Notes to zero prior to the allocation of such
losses to the Class Principal Balance of the Class B-1 Notes.
ARTICLE VI
STATEMENTS AND REPORTS; WITHHOLDING
Section 6.01 Statements.
(a) No later than each Determination Date, the Servicer shall deliver to
the Indenture Trustee by facsimile, the receipt and legibility of which shall be
confirmed by telephone, and with hard copy thereof to be delivered no later than
one (1) Business Day after such Determination Date, the Servicer's Monthly
Remittance Report, setting forth the date of such Report (day, month and year),
the name of the Issuer (i.e. "Empire Funding Home Loan Owner Trust 1998-2"), the
Series designation of the Notes (i.e. "Series 1998-2") and the date of this
Agreement, all in substantially the form set out in Exhibit B hereto.
Furthermore, no later than each Determination Date, the Servicer shall deliver
to the Indenture Trustee a magnetic tape or computer disk providing such
information regarding the Servicer's activities in servicing the Home Loans
during the related Due Period as the Indenture Trustee may reasonably require.
(b) On each Payment Date, Indenture Trustee shall distribute, based on
information provided by the Servicer, a monthly statement (the "Payment
Statement") to the Depositor, the Securityholders and the Rating Agencies,
stating the date of original issuance of the Notes (day, month and year), the
name of the Issuer (i.e. "Empire Funding Home Loan Owner Trust 1998-2"), the
Series designation of the Notes (i.e., "Series 1998-2"), the date of this
Agreement and the following information:
(i) the Available Collection Amount and Available Payment Amount
for the related Payment Date;
(ii) the Class Principal Balance or Class Notional Balance of
each Class of Notes before and after giving effect to payments made to the
holders of such Notes on such Payment Date, and the Pool Principal Balance
as of the first and last day of the related Due Period;
(iii) the Class Factor with respect to each Class of the Notes
then outstanding;
(iv) the amount of principal, if any, and interest to be
distributed to each Class of Notes on the related Payment Date;
(v) with respect to each Class of Notes, the Optimal Principal
Balance thereof;
(vi) the Overcollateralization Deficiency Amount, and any amount
to be distributed to the Noteholders or the holders of the Residual
Interest on such Payment Date;
(vii) the Servicing Compensation, the Indenture Trustee Fee, the
Grantor Trustee Fee, the Owner Trustee Fee and, the Custodian Fee, if any,
for such Payment Date;
(viii) the Overcollateralization Amount (or
Undercollateralization Amount) on such Payment Date, the
Overcollateralization Target Amount as of such Payment Date, the Net Loan
Losses incurred during the related Due Period, the cumulative Net Loan
Losses as of such Payment Date, the Allocable Loss Amount for such Payment
Date, the application of the Allocable Loss Amount Priority for such
Payment Date and any amounts of Loss Reimbursement Deficiency reimbursed on
such Payment Date;
(ix) the weighted average maturity of the Home Loans and the
weighted average Home Loan Interest Rate of the Home Loans;
(x) certain performance information, including, without
limitation, delinquency and foreclosure information with respect to the
Home Loans and 60-Day Delinquency Amounts (as defined in the definition of
"Six-Month Rolling Delinquency Average" in Section 1.01 hereof), as set
forth in the Servicer's Monthly Remittance Report;
(xi) the number of and aggregate Principal Balance of all Home
Loans in foreclosure proceedings and the percent of the aggregate Principal
Balances of such Home Loans to the aggregate Principal Balances of all Home
Loans, all as of the close of business on the last day of the related Due
Period;
(xii) the number of and the aggregate Principal Balance of the
Home Loans in bankruptcy proceedings and the percent of the aggregate
Principal Balances of such Home Loans to the aggregate Principal Balances
of all Home Loans, all as of the close of business on the last day of the
related Due Period;
(xiii) the number of Foreclosure Properties, the aggregate
Principal Balance of the related Home Loans, the book value of such
Foreclosure Properties and the percent of the aggregate Principal Balances
of such Home Loans to the aggregate Principal Balances of all Home Loans,
all as of the close of business on the last day of the related Due Period;
(xiv) during the related Due Period (and cumulatively, from the
Closing Date through the most current Due Period), the number and aggregate
Principal Balance of Home Loans for each of the following: (A) that became
Defaulted Home Loans, (B) that became Liquidated Home Loans, (C) that
became Deleted Home Loans pursuant to Section 3.05 hereof as a result of
such Deleted Home Loans being Defective Home Loans, and (D) that became
Deleted Home loans pursuant to Section 3.05 hereof as a result of such
Deleted Home Loans being Defaulted Home Loans or a Home Loan in default or
imminent default, including the foregoing amounts by loan type (i.e.,
Combination Loans, or Debt Consolidation Loans);
(xv) the scheduled principal payments and the principal
prepayments received with respect to the Home Loans during the Due Period;
and
(xvi) the number and aggregate Principal Balance of Home Loans
that were 30, 60 or 90 days Delinquent as of the close of business on the
last day of the related Due Period.
In the case of information furnished to Securityholders pursuant to
subclause (b)(iv) of this Section 6.01, the amounts shall be expressed as a
dollar amount per Note with a $1,000 Denomination.
All reports prepared by the Indenture Trustee of the withdrawals from and
deposits in the Collection Account will be based in whole or in part upon the
information provided to the Indenture Trustee by the Servicer, and the Indenture
Trustee may fully rely upon and shall have no liability with respect to such
information provided by the Servicer.
(c) Within a reasonable period of time after the end of each calendar year,
the Indenture Trustee shall prepare and distribute to each Person who at any
time during the calendar year was a Noteholder such information as is reasonably
necessary to provide to such Person a statement containing the information set
forth in subclauses (b)(iv) of this Section 6.01, aggregated for such calendar
year or applicable portion thereof during which such Person was a Noteholder.
(d) On each Payment Date, the Indenture Trustee shall forward to The
Depository Trust Company and to the holders of the Residual Interest
Certificates a copy of the Payment Statement in respect of such Payment Date and
a statement setting forth the amounts actually distributed to such holders of
the Residual Interest Certificates on such Payment Date, together with such
other information as the Indenture Trustee deems necessary or appropriate.
(e) Within a reasonable period of time after the end of each calendar year,
the Indenture Trustee shall prepare and distribute to each Person who at any
time during the calendar year was a holder of Residual Interest Certificates, if
requested in writing by such Person, a statement containing the information
provided pursuant to the previous paragraph aggregated for such calendar year or
applicable portion thereof during which such Person was a holder of Residual
Interest Certificates.
(f) The Indenture Trustee shall forward to each Noteholder and each holder
of a Residual Interest Certificate, during the term of this Agreement, such
periodic, special or other reports, including information tax returns or reports
required with respect to the Notes and the Residual Interest Certificates, as
shall be necessary, reasonable, or appropriate with respect to the Noteholders
or the holders of Residual Interest Certificates, or otherwise with respect to
the purposes of this Agreement, all such reports or information in the case of
the Residual Interest Certificates to be provided by and in accordance with such
applicable instructions and directions as the Majority Residual Interestholders
may reasonably require.
(g) Reports and computer tapes furnished by the Servicer and the Indenture
Trustee pursuant to this Agreement shall be deemed confidential and of a
proprietary nature and shall not be copied or distributed except in connection
with the purposes and requirements of this Agreement. No Person entitled to
receive copies of such reports or tapes shall use the information therein for
the purpose of soliciting the customers of the Depositor or the Servicer or for
any other purpose except as set forth in this Agreement.
Section 6.02 Withholding.
The Indenture Trustee shall comply with all requirements of the Code, and
applicable state and local laws, with respect to the withholding from any
payments made to any Noteholder of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in connection
therewith, giving due effect to any applicable exemptions from such withholding
and effective certifications or forms provided by the recipient. Any amounts
withheld pursuant to this Section 6.02 shall be deemed to have been paid to the
Noteholders for all purposes of this Agreement or the Indenture.
ARTICLE VII
GENERAL SERVICING PROCEDURE
Section 7.01 Due-On-Sale; Due-on-Encumbrance.
(a) If any Home Loan contains a provision, in the nature of a "due-on-
sale" clause, which by its terms:
(i) provides that such Home Loan shall (or may at the related
lender's option) become due and payable upon the sale or other transfer of
an interest in any related Mortgaged Property; or
(ii) provides that such Home Loan may not be assumed without the
consent of the related lender in connection with any such sale or other
transfer,
then, for so long as such Home Loan is included in the Grantor Trust, the
Servicer, on behalf of the Grantor Trustee, shall exercise any right the Grantor
Trustee may have as the lender of record with respect to such Home Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to any such sale
or other transfer, in a manner consistent with the Accepted Servicing Procedures
and subject to Section 4.10 or 7.01(c) hereof.
(b) If any Home Loan contains a provision in the nature of a "due-on-
encumbrance" clause, which by its terms:
(i) provides that such Home Loan shall (or may at the related
lender's option) become due and payable upon the creation of any lien or
other encumbrance on any related Mortgaged Property; or
(ii) requires the consent of the related lender to the creation
of any such lien or other encumbrance on any related Mortgaged Property,
then, for so long as such Home Loan is included in the Grantor Trust, the
Servicer, on behalf of the Grantor Trustee, shall exercise any right the Grantor
Trustee may have as the lender of record with respect to such Home Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to the creation
of any such lien or other encumbrance, in a manner consistent with the Accepted
Servicing Standards and subject to Section 4.10 or 7.01(c) hereof.
(c) If a Home Loan does not contain a "due-on-sale" clause or such clause
is reasonably believed by the Servicer not to be enforceable under applicable
law, then the Servicer shall enter into an assumption and modification agreement
with the Person to whom any related Mortgaged Property has been or is about to
be conveyed, pursuant to which such person becomes liable under the Debt
Instrument and, unless prohibited by applicable law or the Home Loan documents,
the Obligor remains liable thereon. In accordance with the Accepted Servicing
Procedures, the Servicer shall have the authority to enter into a substitution
of liability agreement with such person, pursuant to which the original Obligor
is released from liability and such Person is substituted as Obligor and becomes
liable under the Debt Instrument. The Servicer shall notify the Custodian that
any such substitution or assumption agreement has been completed by forwarding
to the Custodian a true and correct copy or, if available, an original of such
substitution or assumption agreement, which copy or original shall be added by
the Custodian to the related Grantor Trustee's Home Loan File. In connection
with any assumption or substitution agreement entered into pursuant to this
Section 7.01(c) hereof, the Servicer shall not change the Home Loan Interest
Rate or the Monthly Payment, defer or forgive the payment of principal or
interest, reduce the outstanding principal amount or extend the final maturity
date on such Home Loan. Any fee collected by the Servicer for consenting to any
such conveyance or entering into an assumption or substitution agreement shall
be retained by or paid to the Servicer as additional Servicing Compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Home Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
(d) Nothing in this Section 7.01 shall constitute a waiver of the Grantor
Trustee's right to receive notice of any assumption of a Home Loan, any sale or
other transfer of the related Mortgaged Property or the creation of any lien or
other encumbrance with respect to such Mortgaged Property.
Section 7.02 Release of Home Loan Files.
(a) If with respect to any Home Loan:
(i) the outstanding Principal Balance of such Home Loan plus all
interest accrued thereon shall have been paid;
(ii) the Servicer shall have received, in escrow, payment in full
of such Home Loan in a manner customary for such purposes;
(iii) such Home Loan has become a Defective Loan and has been
repurchased or a Qualified Substitute Home Loan has been conveyed to the
Grantor Trustee pursuant to Section 3.05 hereof;
(iv) such Home Loan or the related Foreclosure Property has been
sold in connection with the termination of the Issuer and the Grantor Trust
pursuant to Section 11.01 hereof; or
(v) such Home Loan is a Defaulted Home Loan or a Liquidated Home
Loan that is liquidated or disposed of pursuant to Section 4.10 hereof or
the related Foreclosure Property has been sold pursuant to Section 4.11
hereof;
then in each such case, the Servicer shall deliver an Officer's Certificate to
the effect that the Servicer has complied with all of its obligations under this
Agreement with respect to such Home Loan and requesting that the Grantor Trustee
release to the Servicer the related Grantor Trustee's Home Loan File. Upon the
receipt of such Officer's Certificate, the Grantor Trustee shall, within five
Business Days or such shorter period as may be required by applicable law,
release, or cause the applicable Custodian to release (unless such Grantor
Trustee's Home Loan File has previously been released), the related Grantor
Trustee's Home Loan File to the Servicer and execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest ownership of such Home Loan in the Servicer or such other
Person as may be specified in such certificate, the forms of any such instrument
to be appended to such certificate.
(b) If a temporary release of the Grantor Trustee's Home Loan File is
necessary or appropriate for the servicing (which may include any modification
or foreclosure) of any Home Loan, then upon the request of the Servicer pursuant
to Section 3(b) of the Custodial Agreement the Grantor Trustee shall release the
related Grantor Trustee's Home Loan File (or any requested portion thereof) to
the Servicer.
Section 7.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be entitled
to receive from the Collection Account the Servicing Fee (which Servicing Fee is
an expense of the Grantor Trust), out of which the Servicer shall pay any
servicing fees owed or payable to it or any Subservicer. Additional servicing
compensation in the form of assumption fees, modification fees, and other
administrative fees, insufficient funds charges, amounts remitted pursuant to
Section 7.01 hereof and late payment charges shall be part of the Servicing
Compensation payable to the Servicer hereunder and shall be paid either by the
Servicer retaining such additional servicing compensation prior to deposit in
the Collection Account pursuant to Section 5.01(b)(1) hereof or, if deposited in
the Collection Account, as part of the Servicing Compensation withdrawn from the
Note Payment Account pursuant to Section 5.01(c)(1) hereof.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for herein. The
Transferor also agrees to pay (i) all reasonable costs and expenses incurred by
any successor Servicer or the Grantor Trustee in replacing the Servicer in the
event of a default by the Servicer in the performance of its duties under the
terms and conditions of this Agreement and (ii) the annual monitoring fees of
the Rating Agencies.
Section 7.04 Statement as to Compliance and Financial Statements.
The Servicer will deliver to the Indenture Trustee, the Grantor Trustee,
the Depositor and the Rating Agencies not later than 90 days following the end
of each fiscal year of the Servicer (beginning in 1999), an Officer's
Certificate stating that (i) a review of the activities of the Servicer during
the preceding year and of performance under this Agreement has been made under
such officer's supervision and (ii) to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and what action the Servicer proposes
to take with respect thereto.
Contemporaneously with the submission of the Officer's Certificate required
by the preceding paragraph, the Servicer shall deliver to the Indenture Trustee
and the Grantor Trustee a copy of its annual audited financial statements
prepared in the ordinary course of business. The Servicer shall, upon the
request of the Depositor, deliver to such party any unaudited quarterly
financial statements of the Servicer.
The Servicer agrees to make available to the Depositor on a reasonable
basis a knowledgeable officer of the Servicer for the purpose of answering
reasonable questions respecting recent developments affecting the Servicer or
the financial statements of the Servicer and to permit the Depositor on
reasonable notice to inspect the Servicer's servicing facilities during normal
business hours for the purpose of satisfying the Depositor that the Servicer has
the ability to service the Home Loans in accordance with this Agreement.
The Servicer shall also furnish and certify to the requesting party such
other information as to (i) its organization, activities and personnel relating
to the performance of the obligations of the Servicer hereunder, (ii) its
financial condition, (iii) the Home Loans and (iv) the performance of the
obligations of any Subservicer under the related Subservicing Agreement, in each
case as the Indenture Trustee, the Grantor Trustee or the Depositor may
reasonably request from time to time.
Section 7.05 Independent Public Accountants' Servicing Report.
Not later than 90 days following the end of each fiscal year of the
Servicer (beginning with fiscal year 1999), the Servicer at its expense shall
cause any nationally recognized firm of Independent Certified Public Accountants
(which may also render other services to the Servicer) to furnish a statement to
the Indenture Trustee, the Grantor Trustee, the Rating Agencies and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Home Loans under this Agreement or of
mortgage loans under pooling or sale and servicing agreements (including the
Home Loans and this Agreement) substantially similar to one another (such
statement to have attached thereto a schedule setting forth the pooling or sale
and servicing agreements covered thereby) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FHLMC, such firm confirms that such servicing has been conducted in
compliance with such pooling or sale and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers or the Attestation
Program for Mortgages serviced for FHLMC requires it to report, each of which
errors and omissions shall be specified in such statement. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC (rendered within one year of such statement) of independent public
accountants with respect to the related Subservicer.
Section 7.06 Right to Examine Servicer Records.
Each Securityholder, Grantor Trust Holder, the Indenture Trustee, the
Grantor Trustee, the Owner Trustee, Depositor and each of their respective
agents shall have the right upon reasonable prior notice, during normal business
hours and as often as reasonably required, to examine, audit and copy, at the
expense of the Person making such examination, any and all of the books, records
or other information of the Servicer (including without limitation any
Subservicer to the extent provided in the related Subservicing Agreement),
whether held by the Servicer or by another on behalf of the Servicer, which may
be relevant to the performance or observance by the Servicer of the terms,
covenants or conditions of this Agreement. In the case of the supervisory agents
and examiners of the Issuer, the Indenture Trustee, the Grantor Trustee, the
Owner Trustee, the Grantor Trust Holder and the Securityholders, access to the
documentation regarding the Home Loans required by applicable state and federal
regulations shall be afforded without charge but only upon reasonable request
and during normal business hours at the offices of the Servicer designated by
it. Each Securityholder, Grantor Trust Holder, the Indenture Trustee, the
Grantor Trustee and the Owner Trustee agree that any information obtained
pursuant to the terms of this Agreement shall be held confidential.
The Servicer also agrees to make available on a reasonable basis to the
Securityholders or any prospective Securityholder a knowledgeable financial or
accounting officer for the purpose of answering reasonable questions respecting
recent developments affecting the Servicer or the financial statements of the
Servicer and to permit the Securityholders and any prospective Securityholder to
inspect the Servicer's servicing facilities during normal business hours for the
purpose of satisfying the Securityholders and such prospective Securityholder
that the Servicer has the ability to service the Home Loans in accordance with
this Agreement.
Section 7.07 Reports to the Indenture Trustee;
Collection Account Statements.
If the Collection Account is not maintained with the Indenture Trustee,
then not later than 25 days after each Record Date, the Servicer shall forward
to the Indenture Trustee a statement, certified by a Servicing Officer, setting
forth the status of the Collection Account as of the close of business on the
preceding Record Date and showing, for the period covered by such statement, the
aggregate of deposits into the Collection Account for each category of deposit
specified in Section 5.01(b)(1) hereof, the aggregate of withdrawals from the
Collection Account for each category of withdrawal specified in Section
5.01(b)(2) and (3) hereof, in each case, for the related Due Period.
Section 7.08 Financial Statements.
The Servicer understands that, in connection with the transfer of the
Notes, Noteholders may request that the Servicer make available to the
Noteholders and to prospective Noteholders annual audited financial statements
of the Servicer for one or more of the most recently completed five fiscal years
for which such statements are available, which request shall not be unreasonably
denied.
ARTICLE VIII
(RESERVED)
ARTICLE IX
THE SERVICER
Section 9.01 Indemnification; Third Party Claims.
(a) The Servicer shall indemnify the Transferor, the Owner Trustee, the
Issuer, the Grantor Trust, the Depositor, the Grantor Trustee and the Indenture
Trustee (each an "Indemnified Party") and hold harmless each of them against any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of any of the Servicer's representations and warranties and
covenants contained in this Agreement or in any way relating to the failure of
the Servicer to perform its duties and service the Home Loans in compliance with
the terms of this Agreement; provided, however, that if the Servicer is not
liable pursuant to the provisions of Section 9.01(d) hereof for its failure to
perform its duties and service the Home Loans in compliance with the terms of
this Agreement, then the provisions of this Section 9.01 shall have no force and
effect with respect to such failure.
(b) The Transferor, the Depositor, the Grantor Trustee, the Owner Trustee
or the Indenture Trustee, as the case may be, shall promptly notify the Servicer
if a claim is made by a third party with respect to a breach of any of the
Servicer's representations and warranties and covenants contained in this
Agreement or in any way relating to the failure of the Servicer to perform its
duties and service the Home Loans in compliance with the terms of this
Agreement. The Servicer shall promptly notify the Indenture Trustee, the Grantor
Trustee, the Owner Trustee and the Depositor of any claim of which it has been
notified pursuant to this Section 9.01 by a Person other than the Depositor,
and, in any event, shall promptly notify the Depositor of its intended course of
action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to
the Indemnified Party, assume the defense of any such action or claim in
reasonable cooperation with, and with the reasonable cooperation of, the
Indemnified Party. The Indemnified Party will have the right to employ its own
counsel in any such action in addition to the counsel of the Servicer, but the
fees and expenses of such counsel will be at the expense of such Indemnified
Party, unless (i) the employment of counsel by the Indemnified Party at its
expense has been authorized in writing by the Servicer, (ii) the Servicer has
not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Servicer and one or more Indemnified
Parties, and the Indemnified Parties shall have been advised by counsel that
there may be one or more legal defenses available to them which are different
from or additional to those available to the Servicer. The Servicer shall not be
liable for any settlement of any such claim or action unless the Servicer shall
have consented thereto or be in default on its obligations hereunder. Any
failure by an Indemnified Party to comply with the provisions of this Section
9.01 shall relieve the Servicer of liability only if such failure is materially
prejudicial to the position of the Servicer and then only to the extent of such
prejudice.
(d) None of the Transferor, the Depositor, the Servicer or any of the
directors, officers, employees or agents of the Transferor, the Depositor or the
Servicer, or members or Affiliates of the Depositor shall be under any liability
to the Issuer or the Securityholders for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Transferor, the Depositor, the Servicer or any such person against the remedies
provided herein for the breach of any warranties, representations or covenants
made herein, or against any specific liability imposed on the Transferor, the
Depositor or the Servicer herein, or against any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or negligence in the
performance of the duties of the Servicer, the Depositor or the Transferor, as
the case may be, or by reason of reckless disregard of the obligations and
duties of the Servicer, the Depositor or the Transferor, as the case may be,
hereunder. The Transferor, the Depositor, the Servicer and any director,
officer, employee or agent of the Transferor, the Depositor or the Servicer, or
any member or Affiliate of the Depositor may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder.
(e) The Servicer, the Transferor and the Depositor and any director,
officer, employee or agent of the Servicer, the Transferor or the Depositor
shall be indemnified by the Issuer and held harmless against any loss, liability
or expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Securities, other than any loss, liability or
expense related to any specific Home Loan or Home Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. Except as
otherwise provided herein, none of the Transferor, the Depositor or the Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
that is not related to its respective duties under this Agreement; provided,
however, that, except as otherwise provided herein, any of the Transferor, the
Depositor or the Servicer may, with the prior consent of the Indenture Trustee,
in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Securityholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Issuer, and the
Transferor, the Depositor and the Servicer shall be entitled to be reimbursed
therefor out of the Collection Account.
Section 9.02 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and franchises
as a corporation, and will obtain and preserve its qualification to do business
as a foreign corporation and maintain such other licenses and permits in each
jurisdiction necessary to protect the validity and enforceability of this
Agreement or any of the Home Loans and to perform its duties under this
Agreement; provided, however, that the Servicer may merge or consolidate with
any other corporation upon the satisfaction of the conditions set forth in the
following paragraph.
Any Person into which the Servicer may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall be an Eligible Servicer and shall be the successor of the
Servicer, as applicable hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. The Servicer shall send notice of any such merger,
conversion, consolidation or succession to the Indenture Trustee, the Grantor
Trustee and the Issuer.
Section 9.03 Limitation on Liability of the Servicer and Others.
The Servicer and any director, officer, employee or agent of the Servicer
may rely on any document of any kind which it in good faith reasonably believes
to be genuine and to have been adopted or signed by the proper authorities
respecting any matters arising hereunder. Subject to the terms of Section 9.01
hereof, the Servicer shall have no obligation to appear with respect to,
prosecute or defend any legal action which is not incidental to the Servicer's
duty to service the Home Loans in accordance with this Agreement.
Section 9.04 Servicer Not to Resign; Assignment.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) with the consent of the Grantor Trustee and Indenture
Trustee or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to clause (b)
of the preceding sentence permitting the resignation of the Servicer shall be
evidenced by an independent opinion of counsel to such effect delivered (at the
expense of the Servicer) to the Grantor Trustee and the Indenture Trustee. No
resignation of the Servicer shall become effective until the Grantor Trustee or
a successor servicer, appointed pursuant to the provisions of Section 10.02
hereof and satisfying the requirements of Section 4.07 hereof with respect to
the qualifications of a successor Servicer, shall have assumed the Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Except as expressly provided herein, the Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Servicer hereunder and any agreement, instrument or act purporting to effect
any such assignment, transfer, delegation or appointment shall be void.
The Servicer agrees to cooperate with any successor Servicer in effecting
the transfer of the Servicer's servicing responsibilities and rights hereunder
pursuant to the first paragraph of this Section 9.04, including, without
limitation, the transfer to such successor of all relevant records and documents
(including any Home Loan Files in the possession of the Servicer) and all
amounts received with respect to the Home Loans and not otherwise permitted to
be retained by the Servicer pursuant to this Agreement. In addition, the
Servicer, at its sole cost and expense, shall prepare, execute and deliver any
and all documents and instruments to the successor Servicer including all Home
Loan Files in its possession and do or accomplish all other acts necessary or
appropriate to effect such termination and transfer of servicing
responsibilities.
Section 9.05 Relationship of Servicer to the Grantor Trust and the Grantor
Trustee.
The relationship of the Servicer (and of any successor to the Servicer as
servicer under this Agreement) to the Grantor Trust and the Grantor Trustee
under this Agreement is intended by the parties hereto to be that of an
independent contractor and not of a joint venturer, agent or partner of the
Issuer or the Indenture Trustee.
Section 9.06 Servicer May Own Securities.
Each of the Servicer and any Affiliate of the Servicer may in its
individual or any other capacity become the owner or pledgee of Securities with
the same rights as it would have if it were not the Servicer or an Affiliate
thereof except as otherwise specifically provided herein. Securities so owned by
or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Securities; provided,
however, that any Securities owned by the Servicer or any Affiliate thereof,
during the time such Securities are owned by them, shall be without voting
rights for any purpose set forth in this Agreement. The Servicer shall notify
the Indenture Trustee promptly after it or any of its Affiliates becomes the
owner or pledgee of a Security.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to deposit in the Collection
Account in accordance with Section 5.01(b) hereof any payments in respect
of the Home Loans received by the Servicer no later than the second
Business Day following the day on which such payments were received; or
(ii) failure by the Servicer duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Servicer as set forth in this Agreement, which failure continues unremedied
for a period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given (a) to the Servicer
by the Indenture Trustee, the Grantor Trustee or the Issuer, or (b) to the
Servicer, the Indenture Trustee, the Grantor Trustee or the Issuer by the
Majority Noteholders; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer
and such decree or order shall have remained in force, undischarged or
unstayed for a period of 60 days; or
(iv) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or substantially all of
the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay its
debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) the Majority Noteholders and the Grantor Trust Holder (A)
shall receive notice from the Servicer that the Servicer is no longer able
to discharge its duties under this Agreement or (B) shall determine, in
their reasonable judgment and based upon published reports (including wire
services), which they reasonably believe in good faith to be reliable,
that:
a) the Servicer has experienced a material adverse change in
its business, assets, liabilities, operations, condition
(financial or otherwise) or prospects,
b) the Servicer has defaulted on any of its material
obligations, or
c) the Servicer has ceased to conduct its business in the
ordinary course, or
d) as of any Determination Date, the total Expected Loan
Loss Percentage (as defined below) exceeds (1) up to the fifth
(5th) anniversary of the May 31, 1998 Cut-Off Date, 22.0%, or (2)
thereafter 33.0% (where the "Expected Loan Loss Percentage" shall
be the sum of (A) the cumulative Net Loan Losses divided by the
Original Pool Principal Balance, plus (B) 25% of the aggregate
Principal Balance of the Home Loans which are then more than 30
but less than 60 days delinquent divided by the Original Pool
Principal Balance, plus (C) 50% of the aggregate Principal
Balance of the Home Loans which are then more than 60 but less
than 90 days delinquent divided by the Original Pool Principal
Balance, plus (D) 100% of the aggregate Principal Balance of the
Home Loans which are then more than 90 days delinquent divided by
the Original Pool Principal Balance);
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Indenture Trustee, the Grantor Trustee, the Grantor
Trust Holder or the Majority Noteholders, by notice in writing to the Servicer
may, in addition to whatever rights such Person may have at law or in equity to
damages, including injunctive relief and specific performance, may terminate all
the rights and obligations of the Servicer under this Agreement and in and to
the Home Loans and the proceeds thereof, as servicer under this Agreement. Upon
receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Home Loans or
otherwise, shall, subject to Section 10.02 hereof, pass to and be vested in a
successor servicer, or the Grantor Trustee if a successor servicer cannot be
retained in a timely manner, and the successor servicer, or Grantor Trustee, as
applicable, is hereby authorized and empowered to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including,
but not limited to, the transfer and endorsement or assignment of the Home Loans
and related documents. The Servicer agrees to cooperate with the successor
servicer in effecting the termination of the Servicer's responsibilities and
rights hereunder, including, without limitation, the transfer to the successor
servicer for administration by it of all amounts which shall at the time be
credited by the Servicer to each Collection Account or thereafter received with
respect to the Home Loans.
Section 10.02 Grantor Trustee to Act; Appointment of Successor.
On and after the date the Servicer receives a notice of termination
pursuant to Section 10.01 hereof, or the Grantor Trustee receives the
resignation of the Servicer evidenced by an Opinion of Counsel or accompanied by
the consents required by Section 9.04 hereof, or the Servicer is removed as
servicer pursuant to this Article X, then, subject to Section 4.07 hereof, the
Grantor Trustee shall appoint a successor servicer to be the successor in all
respects to the Servicer in its capacity as Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof; provided, however, that the
successor servicer shall not be liable for any actions of any servicer prior to
it; and, provided further, that if a successor servicer cannot be retained in a
timely manner, the Grantor Trustee shall act as successor Servicer. In the event
the Grantor Trustee assumes the responsibilities of the Servicer pursuant to
this Section 10.02, the Grantor Trustee will make reasonable efforts consistent
with applicable law to become licensed, qualified and in good standing in each
Mortgaged Property State the laws of which require licensing or qualification in
order to perform its obligations as Servicer hereunder or, alternatively, shall
retain an agent that is so licensed, qualified and in good standing in any such
Mortgaged Property State.
In the case that the Grantor Trustee serves as successor servicer, the
Grantor Trustee in such capacity shall not be liable for any servicing of the
Home Loans prior to its date of appointment and shall not be subject to any
obligations to repurchase any Home Loans. The successor servicer shall be
obligated to make Servicing Advances hereunder. As compensation therefor, the
successor servicer appointed pursuant to the following paragraph, shall be
entitled to all funds relating to the Home Loans which the Servicer would have
been entitled to receive from the Note Payment Account pursuant to Section
5.01(c) hereof as if the Servicer had continued to act as servicer hereunder,
together with other Servicing Compensation in the form of assumption fees, late
payment charges or otherwise as provided in Section 7.03 hereof. The Servicer
shall not be entitled to any termination fee if it is terminated pursuant to
Section 10.01 hereof but shall be entitled to any accrued and unpaid Servicing
Fee to the date of termination.
Any collections received by the Servicer after removal or resignation shall
be endorsed by it to the Grantor Trustee or the Indenture Trustee, as assignee
of the Grantor Trust Certificate, and remitted directly to the Grantor Trustee
or the Indenture Trustee or, at the direction of the Grantor Trustee or the
Indenture Trustee, to the successor servicer. The compensation of any successor
servicer (including, without limitation, the Grantor Trustee) so appointed shall
be the Servicing Fee, together with other Servicing Compensation provided for
herein. In the event the Grantor Trustee is required to solicit bids to appoint
a successor servicer, the Grantor Trustee shall solicit, by public announcement,
bids from Eligible Servicers. Such public announcement shall specify that the
successor servicer shall be entitled to the full amount of the Servicing Fee and
Servicing Compensation provided for herein. Within 30 days after any such public
announcement, the Grantor Trustee shall negotiate and effect the sale, transfer
and assignment of the servicing rights and responsibilities hereunder to the
qualified party submitting the highest qualifying bid. The Grantor Trustee shall
deduct from any sum received by the Grantor Trustee from the successor to the
Servicer in respect of such sale, transfer and assignment all costs and expenses
of any public announcement and of any sale, transfer and assignment of the
servicing rights and responsibilities hereunder and the amount of any unpaid
Servicing Fees and unreimbursed Servicing Advances made by the Grantor Trustee.
After such deductions, the remainder of such sum shall be paid by the Grantor
Trustee to the Servicer at the time of such sale, transfer and assignment to the
Servicer's successor. The Grantor Trustee, any Custodian, the Servicer and any
such successor servicer shall take such action, consistent with this Agreement,
as shall be necessary to effect any such succession. The Servicer agrees to
cooperate with the Grantor Trustee and any successor servicer in effecting the
termination of the Servicer's servicing responsibilities and rights hereunder
and shall promptly provide the Grantor Trustee or such successor servicer, as
applicable, all documents and records reasonably requested by it to enable it to
assume the Servicer's functions hereunder and shall promptly also transfer to
the Grantor Trustee or the Indenture Trustee, as assignee of the Grantor Trust
Certificate, or such successor servicer, as applicable, all amounts which then
have been or should have been deposited in any Trust Account maintained by the
Servicer or which are thereafter received with respect to the Home Loans.
Neither the Grantor Trustee nor any other successor servicer shall be held
liable by reason of any failure to make, or any delay in making, any payment or
distribution hereunder or any portion thereof caused by (i) the failure of the
Servicer to deliver, or any delay in delivering, cash, documents or records to
it or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Servicer hereunder. No appointment of a successor to the Servicer
hereunder shall be effective until written notice of such proposed appointment
shall have been provided by the Grantor Trustee to the Indenture Trustee, each
Securityholder, each Grantor Trust Holder, the Owner Trustee and the Depositor
and, except in the case of the appointment of the Grantor Trustee as successor
to the Servicer (when no consent shall be required), the Depositor, the Grantor
Trust Holder and the Majority Noteholders shall have consented thereto.
Pending appointment of a successor to the Servicer hereunder, the Grantor
Trustee shall act as servicer hereunder as hereinabove provided. In connection
with such appointment and assumption, the Grantor Trustee may make such
arrangements for the compensation of such successor servicer out of payments on
the Home Loans as it and such successor servicer shall agree; provided, however,
that no such compensation shall be in excess of that permitted the Servicer
pursuant to Section 7.03 hereof, together with other Servicing Compensation in
the form of assumption fees, late payment charges or otherwise as provided in
this Agreement.
Section 10.03 Waiver of Defaults.
The Majority Noteholders may waive any events permitting removal of the
Servicer as servicer pursuant to this Article X; provided, however, that the
Majority Noteholders may not waive a default in making a required payment on a
Note or distribution on a Residual Interest Certificate without the consent of
the related Noteholder or holder of the Residual Interest Certificate. Upon any
waiver of a past default, such default shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived.
Section 10.04 Accounting Upon Termination of Servicer.
Upon termination of the Servicer under this Article X, the Servicer shall,
at its own expense:
(a) deliver to its successor or, if none shall yet have been appointed, to
the Indenture Trustee the funds in any Trust Account maintained by the Servicer;
(b) deliver to its successor or, if none shall yet have been appointed, to
the Grantor Trustee all Home Loan Files and related documents and statements
held by it hereunder and a Home Loan portfolio computer tape;
(c) deliver to its successor or, if none shall yet have been appointed, to
the Grantor Trustee, the Indenture Trustee, the Grantor Trust Holder and the
Securityholders a full accounting of all funds, including a statement showing
the Monthly Payments collected by it and a statement of monies held in trust by
it for payments or charges with respect to the Home Loans; and
(d) execute and deliver such instruments and perform all acts reasonably
requested in order to effect the orderly and efficient transfer of servicing of
the Home Loans to its successor and to more fully and definitively vest in such
successor all rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer under this Agreement.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon notice to the Indenture Trustee of
either: (a)the later of (i) the satisfaction and discharge of the Indenture and
the provisions thereof or (ii) the disposition of all funds with respect to the
last Home Loan and the remittance of all funds due hereunder and the payment of
all amounts due and payable to the Indenture Trustee, the Grantor Trustee, the
Owner Trustee, the Issuer and any Custodian; or (b) the mutual consent of the
Servicer, the Depositor, the Transferor and all Securityholders in writing.
Section 11.02 Optional Termination.
The Majority Residual Interestholders may, at their option, effect an early
termination of the Issuer and the Grantor Trust on or after any Payment Date on
which the Pool Principal Balance declines to 10% or less of the Original Pool
Principal Balance. The Majority Residual Interestholders shall effect such early
termination by providing notice thereof to the Indenture Trustee, the Grantor
Trustee and Owner Trustee and by purchasing all of the Home Loans from the
Grantor Trustee at a purchase price, payable in cash, equal to or greater than
the Termination Price. The expense of any Independent appraiser required under
this Section 11.02 shall be a nonreimbursable expense of Majority Residual
Interestholders.
Any such early termination by the Majority Residual Interestholders shall
be accomplished by depositing into the Collection Account on the third Business
Day prior to the Payment Date on which the purchase is to occur the amount of
the Termination Price to be paid. The Termination Price and any amounts then on
deposit in the Collection Account (other than any amounts not required to have
been deposited therein pursuant to Section 5.01(b)(1) hereof and any amounts
withdrawable therefrom by the Indenture Trustee pursuant to Section 5.01(b)(3)
hereof) shall be transferred to the Note Payment Account pursuant to Section
5.01(b)(2) hereof as a terminating distribution in respect of the Grantor Trust
Certificate pursuant to Section 5.02 of the Grantor Trust Agreement for payment
to Noteholders on the succeeding Payment Date; and any amounts received with
respect to the Home Loans and Foreclosure Properties subsequent to the Due
Period immediately preceding such final Payment Date shall belong to the
purchaser thereof. For purposes of calculating the Available Payment Amount for
such final Payment Date, amounts transferred to the Note Payment Account
immediately preceding such final Payment Date shall in all cases be deemed to
have been received during the related Due Period, and amounts so transferred
shall be applied pursuant to Section 5.01(d) and (e) hereof.
Section 11.03 Notice of Termination.
Notice of termination of this Agreement or of early redemption and
termination of the Issuer and the Grantor Trust shall be sent (i) by the
Indenture Trustee to the Noteholders in accordance with section 10.02 of the
Indenture, (ii) by the Owner Trustee to the Certificateholders in accordance
with section 9.1(d) of the Owner Trust Agreement, and (iii) by the Grantor
Trustee to the Grantor Trust Holder in accordance with Section 7.02 of the
Grantor Trust Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Acts of Noteholders.
Except as otherwise specifically provided herein, whenever action, consent
or approval of the Securityholders is required under this Agreement, such
action, consent or approval shall be deemed to have been taken or given on
behalf of, and shall be binding upon, all Securityholders if the Majority
Securityholders agree to take such action or give such consent or approval.
Section 12.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Servicer, the Transferor, the Indenture Trustee, the Grantor Trustee and the
Issuer by written agreement with notice thereof to the Securityholders, without
the consent of any of the Securityholders, to cure any error or ambiguity, to
correct or supplement any provisions hereof which may be defective or
inconsistent with any other provisions hereof or to add any other provisions
with respect to matters or questions arising under this Agreement; provided,
however, that such action will not adversely affect in any material respect the
interests of the Securityholders. An amendment described above shall be deemed
not to adversely affect in any material respect the interests of the
Securityholders if either (i) an Opinion of Counsel is obtained to such effect
and (ii) the party requesting the amendment obtains a letter from each of the
Rating Agencies confirming that the amendment, if made, would not result in the
downgrading or withdrawal of the rating then assigned by the respective Rating
Agency to any Class of Notes then outstanding.
(b) This Agreement may also be amended from time to time by the Depositor,
the Servicer, the Transferor, the Indenture Trustee, the Grantor Trustee and the
Issuer by written agreement, with the prior written consent of the Majority
Noteholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Securityholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
collections of payments on Home Loans or distributions which are required to be
made on any Security, without the consent of the holders of 100% of each Class
of Notes affected thereby, (ii) adversely affect in any material respect the
interests of the holders of any Class of Notes in any manner other than as
described in clause (i), without the consent of the holders of 100% of such
Class of Notes, or (iii) reduce the percentage of any Class of Notes, the
consent of which is required for any such amendment, without the consent of the
holders of 100% of such Class of Notes.
(c) It shall not be necessary for the consent of Securityholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Issuer, the
Grantor Trustee and the Indenture Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Issuer, the Grantor Trustee and
the Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Issuer's own rights, duties or immunities of the
Issuer, the Grantor Trustee or the Indenture Trustee, as the case may be, under
this Agreement.
Section 12.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement, or a memorandum
thereof if permitted under applicable law, is subject to recordation in all
appropriate public offices for real property records in all of the counties or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Noteholders' expense on
direction of the Majority Noteholders but only when accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Noteholders or is necessary for the administration or
servicing of the Home Loans.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated as
herein provided.
Section 12.05 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, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 12.06 Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
overnight mail, certified mail or registered mail, postage prepaid, to: (i) in
the case of the Depositor, PaineWebber Mortgage Acceptance Corporation IV, 1285
Avenue of the Americas, New York, New York 10019, Attention: John Fearey, Esq.,
or such other addresses as may hereafter be furnished to the Securityholders and
the other parties hereto in writing by the Depositor; (ii) in the case of the
Issuer, at Empire Funding Home Loan Owner Trust 1998-2, c/o Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, Attention: Emmett R. Harmon, or such other address as may hereafter be
furnished to the Securityholders and the other parties hereto; (iii) in the case
of the Transferor and Servicer, Empire Funding Corp., 9737 Great Hills Trail,
Austin, Texas 78759, Attention: Richard N. Steed or such other address as may
hereafter be furnished to the Securityholders and the other parties hereto in
writing by the Servicer or the Transferor; (iv) in the case of the Indenture
Trustee and Grantor Trustee, U.S. Bank National Association, 180 East Fifth
Street, St. Paul, Minnesota 55101; Attention: Structured Finance/Empire Funding
1998-2; and (v) in the case of the Securityholders, as set forth in the
applicable Note Register. Any such notices shall be deemed to be effective with
respect to any party hereto upon the receipt of such notice by such party,
except that notices to the Securityholders shall be effective upon mailing or
personal delivery.
Section 12.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement.
Section 12.08 No Partnership.
Nothing herein contained shall be deemed or construed to create any
partnership or joint venture between the parties hereto and the services of the
Servicer shall be rendered as an independent contractor.
Section 12.09 Counterparts.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same Agreement.
Section 12.10 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
Servicer, the Transferor, the Depositor, the Indenture Trustee, the Grantor
Trustee, the Issuer, the Noteholders and the Grantor Trust Holder and their
respective successors and permitted assigns.
Section 12.11 Headings.
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be part of this
Agreement.
Section 12.12 Actions of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing; and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Depositor, the Servicer or the Issuer. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Depositor, the Servicer and the Issuer if made in the manner provided in this
Section 12.12.
(b) The fact and date of the execution by any Securityholder of any such
instrument or writing may be proved in any reasonable manner which the
Depositor, the Servicer or the Issuer deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Securityholder shall bind every holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Depositor, the Servicer or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The Depositor, the Servicer or the Issuer may require additional proof
of any matter referred to in this Section 12.12 as it shall deem necessary.
Section 12.13 Reports to Rating Agencies.
(a) The Indenture Trustee shall provide to each Rating Agency copies of
statements, reports and notices, to the extent received or prepared in
connection herewith, as follows:
(i) copies of amendments to this Agreement;
(ii) notice of any substitution or repurchase of any Home Loans;
(iii) notice of any termination, replacement, succession, merger
or consolidation of the Servicer, any Custodian or the Issuer;
(iv) notice of final payment on the Notes;
(v) notice of any Event of Default;
(vi) copies of the annual independent accountants' report
delivered pursuant to Section 7.05 hereof, and copies of any compliance
reports delivered by the Servicer including under Section 7.04 hereof; and
(vii) copies of any Payment Date Statement pursuant to Section
6.01(b) hereof.
(b) With respect to the requirement of the Indenture Trustee to provide
statements, reports and notices to the Rating Agencies, such statements, reports
and notices shall be delivered to the Rating Agencies at the following
addresses: (i) if to S&P, 25 Broadway, New York, New York, 10004, Attention:
Residential Mortgage Group, (ii) if to Duff & Phelps, 55 East Monroe Street,
38th Floor, Chicago, Illinois 60603, Attention: MBS Monitoring, or (iii) if to
Fitch IBCA, Inc., One State Street Plaza, New York, New York 10004, Attention:
Asset Backed Surveillance Department.
Section 12.14 Holders of the Residual Interest Certificates.
(a) Any sums to be distributed or otherwise paid hereunder or under the
Owner Trust Agreement to the holders of the Residual Interest Certificates shall
be paid to such holders pro rata based on their percentage holdings in the
Residual Interest;
(b) Where any act or event hereunder is expressed to be subject to the
consent or approval of the holders of the Residual Interest Certificates, such
consent or approval shall be capable of being given by the holder or holders of
not less than 51% of the Residual Interest in aggregate.
Section 12.15 Year 2000 Compliance. Each of the Servicer and the Indenture
Trustee shall undertake to obtain certifications from each of their software
vendors that their respective computer systems will be year 2000 compliant by
August 31, 1999.
<PAGE>
IN WITNESS WHEREOF, the Issuer, the Depositor, the Transferor, the
Servicer, the Grantor Trustee and the Indenture Trustee have caused their names
to be signed by their respective officers thereunto duly authorized, as of the
day and year first above written, to this Sale and Servicing Agreement.
EMPIRE FUNDING HOME LOAN OWNER
TRUST 1998-2,
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By: ____________________________________
Name:
Title:
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, as Depositor
By: ____________________________________
Name:
Title:
EMPIRE FUNDING CORP., as Transferor and
Servicer
By:_____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee and Grantor Trustee
By: ____________________________________
Name:
Title:
<PAGE>
THE STATE OF ___________ )
)
COUNTY OF ______________ )
BEFORE ME, the undersigned authority, a Notary Public, on this _____ day of
June 1998 personally appeared _______________, known to me to be a person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said WILMINGTON TRUST COMPANY, not in its
individual capacity but in its capacity as Owner Trustee of EMPIRE FUNDING HOME
LOAN OWNER TRUST 1998-2 as Issuer, and that she executed the same as the act of
such corporation for the purpose and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF WILMINGTON TRUST COMPANY, this the ____ day
of June, 1998.
______________________________________
Notary Public, State of ______________
<PAGE>
THE STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary Public, on this _____ day of
June 1998 personally appeared _______________, known to me to be a person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, as the Depositor, and that he/she executed the same as the act
of such corporation for the purpose and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION
IV, this the ____ day of June, 1998.
__________________________________________
Notary Public, State of __________________
<PAGE>
THE STATE OF ___________ )
)
COUNTY OF ______________ )
BEFORE ME, the undersigned authority, a Notary Public, on this [__] day of
June 1998 personally appeared _______________________, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said EMPIRE FUNDING CORP.,
as the Transferor and Servicer, and that he executed the same as the act of such
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF EMPIRE FUNDING CORP., this the [____] day
of June, 1998.
_______________________________________
Notary Public, State of _______________
<PAGE>
THE STATE OF ___________ )
)
COUNTY OF ______________ )
BEFORE ME, the undersigned authority, a Notary Public, on this [__] day of
June 1998 personally appeared ____________________, known to me to be the person
and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as the Indenture Trustee and
Grantor Trustee, and that she executed the same as the act of such entity for
the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF U.S. BANK NATIONAL ASSOCIATION, this the
[__] day of June, 1998.
________________________________________
Notary Public, State of ________________
================================================================================
ADMINISTRATION AGREEMENT
dated as of June 1, 1998
among
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
(the "Issuer")
and
U.S. BANK NATIONAL ASSOCIATION,
as Administrator
(the "Administrator")
and
EMPIRE FUNDING CORP.
(the "Company" and "Servicer")
Home Loan Asset Backed Notes, Series 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Duties of the Administrator........................................
Section 2. Duties of the 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 Servicer.....................
Section 9. Term of Agreement; Resignation and Removal of
Administrator or 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 U.S. Bank in Other Capacities....................
Section 19. Limitation of Liability of Owner Trustee...........................
Section 20. Benefit of Agreement...............................................
Section 21. Bankruptcy Matters.................................................
Section 22. Capitalized Terms..................................................
<PAGE>
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT dated as of June 1, 1998, among EMPIRE FUNDING
HOME LOAN OWNER TRUST 1998-2, a Delaware business trust, as Issuer (the
"Issuer"), U.S. BANK NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity but solely as Administrator ("U.S. Bank" and in such
capacity, the "Administrator"), and EMPIRE FUNDING CORP., an Oklahoma
corporation, as the Company and Servicer (respectively, the "Company" and
"Servicer").
W I T N E S S E T H:
WHEREAS, the Issuer is a business trust (the "Owner Trust") under the
Delaware Business Trust Act (12 Del. C. Section 3801 et seq.) created by a Trust
Agreement relating to the Owner Trust dated as of June 1, 1998 (the "Owner Trust
Agreement"), among PaineWebber Mortgage Acceptance Corporation IV, as depositor
(the "Depositor"), Wilmington Trust Company, as Owner Trustee, U.S. Bank, as
Paying Agent (in such capacity, the "Paying Agent") and Empire Funding Corp.;
WHEREAS, the Issuer will issue Home Loan Asset Backed Notes (the "Notes"),
Series 1998-2;
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of June 1, 1998 (the
"Indenture"), between the Issuer and U.S. Bank, as Indenture Trustee (in such
capacity, the "Indenture Trustee");
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes, including (i) a Sale and Servicing Agreement dated as
of June 1, 1998 (the "Sale and Servicing Agreement"), among the Issuer, Empire
Funding Corp., as servicer and transferor (in such capacities, the "Servicer"
and the "Transferor," respectively), the Depositor and U.S. Bank, as Indenture
Trustee and the grantor trustee (in such capacity the "Grantor Trustee"), (ii) a
Grantor Trust Agreement dated as of June 1, 1998 (the "Grantor Trust
Agreement"), among the Depositor, the Grantor Trustee and the Transferor, (iii)
the Letter of Representations, among the Issuer, the Indenture Trustee and The
Depository Trust Company relating to the Notes (the "Note Depository
Agreement"), (iv) the Indenture, (v) the Owner Trust Agreement, the Sale and
Servicing Agreement, the Note Depository Agreement, the Indenture, the Grantor
Trust Agreement and the Owner Trust Agreement being hereinafter referred to
collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with the Notes and the collateral therefor
pledged pursuant to the Indenture (the "Collateral");
WHEREAS, the Issuer desires to have the Administrator and the Servicer,
respectively, perform certain of the duties of the Issuer referred to in the
preceding clause, and to provide such additional services consistent with the
terms of this Agreement and the Related Agreements as the Issuer may from time
to time request; and
WHEREAS, the Administrator and the Servicer have the capacity to provide
the respective services required hereby and are willing to perform such services
for the Issuer on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with Respect to the Note Depository Agreement, the Sale
and Servicing Agreement and the Indenture.
(i) The Administrator agrees to perform all of the duties of
the Issuer under the Note Depository Agreement and those duties set
forth herein. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer under the Sale and
Servicing Agreement, the Indenture and the Note Depository Agreement.
The Administrator shall monitor the performance of the Issuer and shall
notify the Owner Trustee when action is necessary to comply with the
Issuer's duties under the Sale and Servicing Agreement, the Indenture
and the Note Depository Agreement. In addition to the foregoing, the
Administrator shall take all appropriate action that is the duty of the
Issuer to take with respect to the following matters under the Sale and
Servicing Agreement and the Indenture (parenthetical section references
are to sections of the Indenture):
(A) the preparation of the Notes and the execution of the
Notes upon their issuance and upon the registration of any
transfer or exchange of the Notes (Sections 2.02 and 2.03);
(B) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new
Note Registrar and the location, or change in location, of the
Note Register (Section 2.03);
(C) the notification of Noteholders of the final
principal payment on the Notes or of the redemption of the
Notes or the duty to cause the Indenture Trustee to provide
such notification (Sections 2.06(b) and 10.02);
(D) performing the function of the Issuer with respect to
the cancellation of the Notes (Section 2.07);
(E) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.08);
(F) the maintenance of an office in the City of St. Paul,
Minnesota, for registration of transfer or exchange of Notes
(Section 3.02);
(G) the delivery to the Indenture Trustee and the Rating
Agencies of prompt written notice of each Event of Default
under the Indenture (Section 3.14);
(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 and the Rating
Agencies of the occurrence of an Event of Default under the
Sale and Servicing Agreement by the Servicer or the Transferor
and, if such an Event of Default arises from the failure of
the Servicer or the Transferor to perform any of their
respective duties under the Sale and Servicing Agreement, the
taking of all reasonable steps available to remedy such
failure (Section 3.07(d)), and upon the termination of the
Servicer, the appointment of a Successor Servicer thereunder
and the notifications in connection therewith (Section 3.07(e)
and (f));
(K) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture (Section 4.01);
(L) opening one or more accounts in the Owner Trust's
name (Section 8.02);
(M) notifying the Rating Agencies of a redemption of the
Notes and the duty to cause the Majority Residual
Interestholders to deposit the Termination Price into the Note
Payment Account and the Certificate Distribution Account
(Section 10.01);
(N) providing the Indenture Trustee with calculations
pertaining to original issue discount, if any, on the Notes
and, if applicable, the accrual of market discount or the
amortization of premium on the Notes to the extent the
Administrator has received from the Servicer sufficient
information to calculate such amounts (Section 3.03);
(O) the preparation and filing of all documents and
reports by the Issuer on Forms 8-K and 10-K as required under
the Exchange Act, the rules and regulations of the Commission
thereunder and the TIA (Section 7.03); and
(P) filing Internal Revenue Service Form 8811 within 30
days of the Closing Date, designating the officer of the
Indenture Trustee that Noteholders may contact for original
issue discount information with respect to the Notes, and
updating such Form at the time or times required by the Code.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in the Owner
Trust Agreement with respect to, among other things, accounting and
reports to Owners, and the Administrator shall be responsible for the
performance of the tax duties set forth in (i) Sections 5.2(c) and (ii)
5.5 of the Owner Trust Agreement upon receipt of the Opinion of Counsel
specified in Section 5.5 of the Owner Trust Agreement stating that it
is necessary to perform such tax duties; provided, however, that the
Owner Trustee shall retain responsibility for the distribution of the
Schedule K-1's necessary to enable each Owner to prepare its federal
and state income tax returns; provided further, that the Indenture
Trustee shall receive written notification if there shall be two or
more beneficial owners of the Owner Trust.
(b) (i) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Owner Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Owner Trust Agreement.
(ii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
Section 2. Duties of the Company with Respect to the Indenture.
(a) The Company shall take all appropriate action that is the
duty of the Issuer to take with respect to the following matters under
the Indenture (parenthetical section references are to sections of the
Indenture):
(i) preparing, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of Collateral (Section 2.09);
(ii) preparation and execution of all supplements, amendments,
financing statements, continuation statements, instruments of further
assurance and other instruments, in accordance with Section 3.05 of the
Indenture, necessary to protect the Owner Trust Estate (Section 3.05);
(iii) the annual delivery of Opinions of Counsel, in
accordance with Section 3.06 of the Indenture, as to the Owner Trust
Estate, and the annual delivery of the Officers' Certificate and
certain other statements, in accordance with Section 3.09 of the
Indenture, as to compliance with the Indenture (Sections 3.06 and
3.09);
(iv) monitoring the Issuer's compliance with its negative
covenants (Section 3.08) and the compliance of the Servicer with
certain of its obligations under the Sale and Servicing Agreement
(Section 3.03);
(v) compliance with any directive of the Indenture Trustee
with respect to the sale of the Owner Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing under the Indenture (Section 5.04);
(vi) appointing a successor Indenture Trustee pursuant to
Section 6.08 of the Indenture (Section 6.08);
(vii) causing one or more accounts to be opened in the Owner
Trust's name and preparing Issuer Orders, Officers' Certificates and
Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections
8.02 and 8.03);
(viii) preparing an Issuer Request and Officers' Certificate
and obtaining an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Owner Trust Estate as defined in the
Indenture (Sections 8.05 and 8.06);
(ix) preparing Issuer Orders and obtaining of Opinions of
Counsel with respect to any proposed amendment of the Owner Trust
Agreement or amendment to or waiver of any provision of any other
document relating to the Owner Trust Agreement pursuant to Section 9.07
of the Indenture (Section 9.07); and
(x) notifying the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04).
(b) The Company will indemnify the Owner Trustee and its
agents for, and hold them harmless against, any losses, liability or
expense incurred without gross negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration
of the transactions contemplated by the Owner Trust Agreement,
including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties under the Owner Trust
Agreement.
(i) Additional Duties. In addition to the duties of the
Company set forth above, the Company shall prepare for execution by the
Issuer or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Related Agreements, and at the request of the
Owner Trustee shall take all appropriate action that it is the duty of
the Issuer to take pursuant to the Related Agreements. Subject to
Section 5 hereof and in accordance with the directions of the Owner
Trustee, the Company shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Related Agreements) as are not covered by any of the
foregoing provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the Company.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Owner Trust's payments (or allocations of income)
to an Owner as contemplated in Section 5.2(c) of the Owner Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
Section 3. Records.
The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer and the Servicer at any
time during normal business hours.
Section 4. Compensation.
The Administrator will perform the duties and provide the services
called for under Section 1 hereof without any separate compensation therefor for
so long as the Indenture and the Sale and Servicing Agreement remain in effect,
and thereafter for such compensation as shall be agreed upon among the
Administrator, the Owner Trustee and the Servicer.
Section 5. Additional Information to Be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
Section 6. Independence of the Administrator.
For all purposes of this Agreement, the Administrator shall be an
independent contractor and shall not be subject to the supervision of the Issuer
or the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Administrator shall have no authority to act for or represent the
Issuer or the Owner Trustee in any way and shall not otherwise be deemed an
agent of the Issuer or the Owner Trustee.
Section 7. No Joint Venture.
Nothing contained in this Agreement (i) shall constitute the
Administrator or the Servicer, respectively, and either the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 8. Other Activities of Administrator and Servicer.
Nothing herein shall prevent the Administrator, the Servicer or their
respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an administrator for any other
person or entity even though such person or entity may engage in business
activities similar to those of the Issuer or the Owner Trustee.
Section 9. Term of Agreement; Resignation and Removal
of Administrator or Servicer.
(a) This Agreement shall continue in force until the termination of the
Owner Trust Agreement in accordance with its terms, upon which event this
Agreement shall automatically terminate.
(b) Subject to Section 9(e) hereof, the Administrator or the Servicer
may resign their respective duties hereunder by providing the Issuer with at
least 60 days' prior written notice.
(c) Subject to Section 9(e) hereof, the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 9(e) hereof, the Issuer may remove the
Administrator immediately upon written notice of termination from the Issuer to
the Administrator if any of the following events occurs:
(i) the Administrator defaults in the performance of any of
its duties under this Agreement and, after notice of such default, does
not cure such default within ten days (or, if such default cannot be
cured in such time, does not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises enters a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoints a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or orders the winding-up or liquidation of its affairs; or
(iii) the Administrator commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, consents to the entry of an order for relief in an
involuntary case under any such law, consents to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, consents to the taking of possession by any such official of
any substantial part of its property, makes any general assignment for
the benefit of creditors or fails generally to pay its debts as they
become due.
The Administrator agrees that if any of the events specified in clause
(ii) or clause (iii) of this Section 9(d) shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven days after
the happening of such event.
(e) No resignation or removal of the Administrator or Servicer,
respectively, pursuant to this Section 9(d) shall be effective until (i) a
successor Administrator or Servicer, as the case may be, shall have been
appointed by the Issuer and (ii) such successor Administrator or Servicer shall
have agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator or Servicer is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Section 9(e) and (f) hereof, the Administrator
acknowledges that upon the appointment of a successor Indenture Trustee pursuant
to Section 6.08 of the Indenture, the Administrator shall immediately resign and
such successor Indenture Trustee shall automatically become the Administrator
under this Agreement. Any such successor Indenture Trustee shall be required to
agree to assume the duties of the Administrator under the terms and conditions
of this Agreement in its acceptance of appointment as successor Indenture
Trustee.
(h) The Servicer's appointment hereunder will terminate automatically
on the Servicer's resignation or removal under the Sale and Servicing Agreement.
Section 10. Action upon Termination, Resignation or
Removal of the Administrator.
Promptly upon the effective date of termination of this Agreement
pursuant to Section 9(a) or the resignation or removal of the Administrator
pursuant to Section 9(b) or (c), respectively, the Administrator shall be
entitled to be paid all reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 9(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator and, in the event of the resignation or removal of the
Administrator pursuant to Section 9(b), (c) or (d), the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
Section 11. Notices.
Any notice, report or other communication given hereunder shall be in
writing and addressed as follows:
(a) if to the Issuer, to
Empire Funding Home Loan Owner Trust 1998-2
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
with a copy to the Company at
Empire Funding Corp.
9737 Great Hills Trail
Austin, Texas 78759
Attention: Richard N. Steed
(b) if to the Administrator, to
U.S. Bank National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Structured Finance/Empire
Funding 1998-2
(c) if to the Servicer, to
Empire Funding Corp.
9737 Great Hills Trail
Austin, Texas 78759
Attention: Richard N. Steed
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
Section 12. Amendments.
This Agreement may be amended from time to time by a written amendment
duly executed and delivered by the Issuer, the Administrator and the Servicer,
with the prior written consent of the Owner Trustee without the consent of the
Noteholders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner, the rights of the Noteholders; provided, however, that such
amendment will not materially and adversely affect the interest of any
Noteholder. An amendment described above shall be deemed not to adversely affect
in any material respects the interests of any Noteholder if either (i) an
Opinion of Counsel is obtained to such effect or (ii) the party requesting the
amendment satisfies the Rating Agency Condition with respect to such amendment.
This Agreement may also be amended by the Issuer, the Administrator and the
Servicer with the prior written consent of the Owner Trustee and the holders of
Notes evidencing at least a majority of the Outstanding Amount of the Notes for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of Noteholders; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments in respect of the Home Loans or payments that are
required to be made for the benefit of the Noteholders or (ii) reduce the
aforesaid percentages of the holders of Notes which are required to consent to
any such amendment, in the case of either clause (i) or clause (ii) hereof,
without the consent of the holders of all the Outstanding Notes. Notwithstanding
the foregoing, the Administrator may not amend this Agreement without the
permission of the Servicer, which permission shall not be withheld unreasonably.
Section 13. Successor and Assigns.
This Agreement may not be assigned by the Administrator unless such
assignment is previously consented to in writing by the Owner Trustee and the
Servicer, subject to the satisfaction of the Rating Agency Condition in respect
thereof. An assignment with such consent and satisfaction, if accepted by the
assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Owner Trustee or
the Servicer to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided,
however, that such successor organization executes and delivers to the Issuer,
the Owner Trustee and the Servicer an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
Section 14. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 15. Headings.
The section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
Section 16. Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall together constitute but one and the same agreement.
Section 17. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 18. Not Applicable to U.S. Bank in Other Capacities.
Nothing in this Agreement shall affect any obligation that U.S. Bank
may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Owner Trust Agreement.
Section 20. Benefit of Agreement.
It is expressly agreed that in performing its duties under this
Agreement, the Administrator will act for the benefit of holders of the Notes as
well as for the benefit of the Owner Trust, and that such obligations on the
part of the Administrator shall be enforceable at the instance of the Indenture
Trustee and the Owner Trust.
Section 21. Bankruptcy Matters.
No party to this Agreement shall take any action to cause the Owner
Trust 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.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
By:________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, not in its i
individual capacity but solely as
Administrator,
By:______________________________________
Name:
Title:
EMPIRE FUNDING CORP.,
as the Company and as Servicer,
By:______________________________________
Name:
Title:
================================================================================
OWNER TRUST AGREEMENT
among
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV,
as Depositor,
EMPIRE FUNDING CORP.,
as the Company,
WILMINGTON TRUST COMPANY,
as Owner Trustee
U.S. BANK NATIONAL ASSOCIATION,
as Paying Agent
Dated as of June 1, 1998
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
Home Loan Asset Backed Notes, Series 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms..................................................
SECTION 1.2 Other Definitional Provisions......................................
ARTICLE II
ORGANIZATION
SECTION 2.1 Name...............................................................
SECTION 2.2 Office.............................................................
SECTION 2.3 Purposes and Powers................................................
SECTION 2.4 Appointment of Owner Trustee.......................................
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate.................
SECTION 2.6 Declaration of Trust...............................................
SECTION 2.7 Title to Trust Property............................................
SECTION 2.8 Situs of Trust.....................................................
SECTION 2.9 Representations and Warranties of the Depositor
and the Company; Covenant of the Company...........................
ARTICLE III
RESIDUAL INTEREST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership..................................................
SECTION 3.2 The Residual Interest Certificates.................................
SECTION 3.3 Execution, Authentication and Delivery of
Residual Interest Certificates.....................................
SECTION 3.4 Registration of Transfer and Exchange of
Residual Interest Certificates.....................................
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Residual
Interest Certificates..............................................
SECTION 3.6 Persons Deemed Owners..............................................
SECTION 3.7 Access to List of Owners' Names and Addresses......................
SECTION 3.8 Maintenance of Office or Agency....................................
SECTION 3.9 Appointment of Paying Agent........................................
SECTION 3.10 Restrictions on Transfer of Residual Interest Certificates........
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters; Covenants..
SECTION 4.2 Action by Owners with Respect to Certain Matters...................
SECTION 4.3 Action by Owners with Respect to Bankruptcy........................
SECTION 4.4 Restrictions on Owners' Power......................................
SECTION 4.5 Majority Control...................................................
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Trust Account.....................................
SECTION 5.2 Application Of Trust Funds.........................................
SECTION 5.3 Method of Payment..................................................
SECTION 5.4 Segregation of Moneys; No Interest.................................
SECTION 5.5 Accounting and Reports to the Certificateholder,
Owners, the Internal Revenue Service and Others....................
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority..................................................
SECTION 6.2 General Duties.....................................................
SECTION 6.3 Action upon Instruction............................................
SECTION 6.4 No Duties Except as Specified in this Agreement,
the Basic Documents or in Instructions.............................
SECTION 6.5 No Action Except Under Specified Documents or Instructions.........
SECTION 6.6 Restrictions.......................................................
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties....................................
SECTION 7.2 Furnishing of Documents............................................
SECTION 7.3 Representations and Warranties.....................................
SECTION 7.4 Reliance; Advice of Counsel........................................
SECTION 7.5 Not Acting in Individual Capacity..................................
SECTION 7.6 Owner Trustee Not Liable for Residual Interest
Certificates or Home Loans.........................................
SECTION 7.7 Owner Trustee May Own Residual Interest Certificates and Notes.....
SECTION 7.8 Licenses...........................................................
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE AND PAYING AGENT
SECTION 8.1 Fees and Expenses..................................................
SECTION 8.2 Indemnification....................................................
SECTION 8.3 Payments to the Owner Trustee and Paying Agent.....................
ARTICLE IX
TERMINATION OF OWNER TRUST AGREEMENT
SECTION 9.1 Termination of Owner Trust Agreement...............................
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee........................
SECTION 10.2 Resignation or Removal of Owner Trustee...........................
SECTION 10.3 Successor Owner Trustee...........................................
SECTION 10.4 Merger or Consolidation of Owner Trustee..........................
SECTION 10.5 Appointment of Co-Owner Trustee or Separate Owner Trustee.........
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments........................................
SECTION 11.2 No Legal Title to Owner Trust Estate in Owners....................
SECTION 11.3 Limitations on Rights of Others...................................
SECTION 11.4 Notices...........................................................
SECTION 11.5 Severability......................................................
SECTION 11.6 Separate Counterparts.............................................
SECTION 11.7 Successors and Assigns............................................
SECTION 11.8 No Petition.......................................................
SECTION 11.9 No Recourse.......................................................
SECTION 11.10 Headings.........................................................
SECTION 11.11 Governing Law....................................................
SECTION 11.12 Residual Interest Transfer Restrictions..........................
EXHIBIT A Form of Residual Interest Certificate
EXHIBIT B Form of Certificate of Trust
<PAGE>
THIS OWNER TRUST AGREEMENT, dated as of June 1, 1998, among PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION IV, a Delaware corporation, as Depositor (the
"Depositor"), EMPIRE FUNDING CORP., an Oklahoma corporation (the "Company"),
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee (the
"Owner Trustee") and U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Paying Agent").
WITNESSETH:
In consideration of the mutual agreements and covenants herein contained,
the Depositor, the Company, the Paying Agent and the Owner Trustee hereby agree
for the benefit of each of them and the holders of the Residual Interest
Certificates as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Administration Agreement, dated
as of June 1, 1998 among the Issuer, the Company, and U.S. Bank National
Association, as Administrator.
"Administrator" shall mean U.S. Bank National Association, or any
successor in interest thereto, in its capacity as Administrator under the
Administration Agreement.
"Agreement" shall mean this Owner Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean the Certificate of Owner Trust, Certificate
of Grantor Trust, this Agreement, the Grantor Trust Agreement, the Indenture,
the Sale and Servicing Agreement, the Administration Agreement, the Custodial
Agreement, the Note Depository Agreement and other documents and certificates
delivered in connection herewith or therewith.
"Benefit Plan Investor" shall have the meaning assigned to such term in
Section 3.10(b).
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Codess. 3801 et seq., as the same may be amended from time to
time.
"Certificate Distribution Account" shall have the meaning assigned to such
term in Section 5.1.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the register
mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder" or "Holder" shall mean a Person in whose name a Trust
Certificate is registered.
"Corporate Trust Office" shall mean, with respect to the Trust, the
principal corporate trust office of the Trust located at Empire Funding Home
Loan Owner Trust, c/o Wilmington Trust Co., Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; or at such other address in the State of Delaware as the Owner
Trustee may designate by notice to the Owners and the Company, or the principal
corporate trust office of any successor Owner Trustee (the address (which shall
be in the State of Delaware) of which the successor owner trustee will notify
the Owners and the Company).
"Definitive Certificate" means a certificated form of security that
represents a Residual Interest Certificate.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Expenses" shall have the meaning assigned to such term in Section 8.2.
"Indenture" shall mean the Indenture, dated as of June 1, 1998, by and
between the Issuer and the Indenture Trustee.
"Indenture Trustee" means U.S. Bank National Association, as Indenture
Trustee under the Indenture.
"Issuer" shall mean Empire Funding Home Loan Owner Trust 1998-2, the
Delaware business trust created pursuant to this Agreement.
"Majority Residual Interestholders" shall mean the Holders of more than an
aggregate 50% Percentage Interest of the Residual Interest.
"Owner" shall mean each holder of a Residual Interest Certificate.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor owner trustee hereunder.
"Paying Agent" shall mean the Indenture Trustee or any successor in
interest thereto or any other paying agent or co-paying agent appointed pursuant
to Section 3.9 hereunder and authorized by the Issuer to make payments to and
distributions from the Certificate Distribution Account.
"Percentage Interest" shall mean with respect to each Residual Interest
Certificate, the percentage portion of all of the Residual Interest evidenced
thereby as stated on the face of such Residual Interest Certificate.
"Prospective Owner" shall have the meaning set forth in Section 3.10(a).
"Rating Agency Condition" means, with respect to any action to which a
Rating Agency Condition applies, that each Rating Agency shall have been given
10 days (or such shorter period as is acceptable to each Rating Agency) prior
notice thereof and that each of the Rating Agencies shall have notified the
Depositor, the Servicer, the Owner Trustee and the Issuer in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes.
"Record Date" shall mean as to each Payment Date the last Business Day of
the month immediately preceding the month in which such Payment Date occurs.
"Residual Interest" shall mean the right to receive distributions of
Excess Spread, if any, and certain other funds, if any, on each Payment Date,
pursuant to Section 5.2 of this Agreement, Sections 5.01(d), 5.01(e) and 5.02(b)
of the Sale and Servicing Agreement and Section 5.04(b) of the Indenture.
"Residual Interest Certificate" shall mean a certificate substantially in
the form attached as Exhibit A hereto and evidencing the Residual Interest.
"Residual Interestholder" shall mean any Holder of a Percentage Interest
of the Residual Interest.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of the date hereof, among the Owner Trust as Issuer, PaineWebber
Mortgage Acceptance Corporation IV, as Depositor, U.S. Bank National
Association, as Indenture Trustee and Grantor Trustee, and the Company, as
Transferor and Servicer, as the same may be amended from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Trust" shall mean the trust established by this Agreement.
"U.S. Person" shall mean a citizen or resident of the United States, a
corporation, partnership (except as provided in applicable Treasury regulations)
or other entity created or organized in or under the laws of the United States
or any political subdivision thereof, an estate that is subject to United States
federal income tax regardless of the source of its income, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more such U.S. Persons have authority to
control all substantial decisions of the trust (or, to the extent provided in
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to be treated as U.S. Persons).
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "Empire
Funding Home Loan Owner Trust 1998-2", in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Owners and the Company.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and to sell such
Notes;
(ii) with the proceeds of the sale of the Notes, to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor and the Company, as their interests may
appear pursuant to the Sale and Servicing Agreement;
(iii) to purchase, hold, assign, grant, transfer, pledge, mortgage
and convey the Owner Trust Estate pursuant to the Indenture and to hold,
manage and distribute to the Owners pursuant to the terms of the Sale and
Servicing Agreement any portion of the Owner Trust Estate released from
the lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith;
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the Owners
and the Noteholders; and
(vii) to issue the Residual Interest Certificates pursuant to this
Agreement.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Depositor or
the Company shall pay reasonable organizational expenses of the Trust as they
may arise or shall, upon the request of the Owner Trustee, promptly reimburse
the Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Owners, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, solely for
federal, state and local income and franchise tax purposes (i) so long as there
is a sole Owner, the Trust shall be treated as a security arrangement, with the
assets of the Trust being the Grantor Trust Certificate and the other assets
held by the Trust, the owner of the Grantor Trust Certificate being the sole
Owner and the Notes being non-recourse debt of the sole Owner, and (ii) if there
is more than one Owner, the Trust shall be treated as a partnership, with the
assets of the partnership being the Grantor Trust Certificate and other assets
held by the Trust, the partners of the partnership being the holders of the
Residual Interest Certificates and the Notes being non-recourse debt of the
partnership. The Trust shall not elect to be treated as an association under
Treasury Regulations Section 301.7701-3(a) for federal income tax purposes. The
parties agree that, unless otherwise required by appropriate tax authorities,
the sole Owner or the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Trust as provided in the second preceding sentence for such tax purposes.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7 Title to Trust Property.
(a) Subject to the Indenture, legal title to all the Owner Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee and/or a separate trustee, as the case
may be.
(b) The Owners shall not have legal title to any part of the Owner Trust
Estate. No transfer by operation of law or otherwise of any interest of the
Owners shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of any part of
the Owner Trust Estate.
SECTION 2.8 Situs of Trust. The Trust will be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York, except with respect to accounts maintained by the Indenture Trustee on
behalf of the Owner Trustee. The Trust shall not have any employees; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments will be
received by the Trust only in Delaware or New York, and payments will be made by
the Trust only from Delaware or New York, except with respect to payments made
by the Indenture Trustee on behalf of the Owner Trustee. The only offices of the
Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.9 Representations and Warranties of the Depositor and the
Company; Covenant of the Company.
(a) The Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Depositor is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware and has all
licenses necessary to carry on its business as now being conducted. The
Depositor has the power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer
to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action of the Depositor; this
Agreement evidences the valid, binding and enforceable obligation of the
Depositor; and all requisite action has been taken by the Depositor to
make this Agreement valid, binding and enforceable upon the Depositor in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium and other, similar laws relating to
or affecting creditors' rights generally or the application of equitable
principles in any proceeding, whether at law or in equity;
(ii) The consummation of the transactions contemplated by this
Agreement will not result in (i) the breach of any terms or provisions of
the Articles of Incorporation or Bylaws of the Depositor, (ii) the breach
of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any material
agreement, indenture or loan or credit agreement or other material
instrument to which the Depositor, or its property is subject, or (iii)
the violation of any law, rule, regulation, order, judgment or decree to
which the Depositor or its respective property is subject;
(iii) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of the Depositor or its properties
or might have consequences that would materially and adversely affect its
performance hereunder.
(b) The Company hereby represents and warrants to the Owner Trustee that:
(i) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Oklahoma, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(ii) The Company is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(iii) The Company has the power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution, delivery and
performance of this Agreement has been duly authorized by the Company by
all necessary corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Company, or any indenture, agreement or
other instrument to which the Company is a party or by which it is bound;
nor result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Company's knowledge, any order, rule or
regulation applicable to the Company of any court or of any Federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its properties.
(v) There are no proceedings or investigations pending or, to the
Company's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Company or its properties: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or (iii) seeking
any determination or ruling that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement.
(c) The Company covenants with the Owner Trustee that during the
continuance of this Agreement it will comply in all respects with the provisions
of its Articles of Incorporation in effect from time to time.
ARTICLE III
RESIDUAL INTEREST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Residual Interest Certificates, the Depositor shall be the sole Owner of the
Trust.
SECTION 3.2 The Residual Interest Certificates. The Residual Interest
Certificates shall not be issued with a principal amount. The Residual Interest
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of a Trust Officer of the Owner Trustee. Residual Interest
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Residual Interest
Certificates or did not hold such offices at the date of authentication and
delivery of such Residual Interest Certificates.
A transferee of a Residual Interest Certificate shall become an Owner, and
shall be entitled to the rights and subject to the obligations of an Owner
hereunder and under the Sale and Servicing Agreement, upon such transferee's
acceptance of a Residual Interest Certificate duly registered in such
transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery of Residual Interest
Certificates. Concurrently with the initial sale of the Grantor Trust
Certificate to the Trust pursuant to the Sale and Servicing Agreement, the Owner
Trustee on behalf of the Trust shall cause the Residual Interest Certificates
representing 100% of the Percentage Interests of the Residual Interest to be
executed, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Residual Interest Certificate shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Residual Interest Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Administrator, as the Owner Trustee's authenticating agent,
by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Residual Interest Certificate shall have been duly
authenticated and delivered hereunder. All Residual Interest Certificates shall
be dated the date of their authentication.
SECTION 3.4 Registration of Transfer and Exchange of Residual Interest
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8 a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Residual Interest Certificates and
of transfers and exchanges of Residual Interest Certificates as herein provided.
The Administrator shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Residual Interest
Certificate at the office or agency maintained pursuant to Section 3.8, the
Owner Trustee shall execute, authenticate and deliver (or shall cause the
Administrator as its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new Residual
Interest Certificates in authorized denominations of a like aggregate amount
dated the date of authentication by the Owner Trustee or any authenticating
agent provided that prior to such execution, authentication and delivery, the
Owner Trustee, the Administrator and the Certificate Registrar shall have
received an Opinion of Counsel to the effect that the proposed transfer will not
cause the Trust to be characterized as an association (or a publicly traded
partnership) taxable as a corporation or alter the tax characterization of the
Notes for federal income tax or Texas state law purposes. At the option of an
Owner, Residual Interest Certificates may be exchanged for other Residual
Interest Certificates of authorized denominations of a like aggregate amount
upon surrender of the Residual Interest Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.8.
Every Residual Interest Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Owner or his attorney duly authorized
in writing. In addition, each Residual Interest Certificate presented or
surrendered for registration of transfer and exchange must be accompanied by a
letter from the Prospective Owner certifying as to the representations set forth
in Sections 3.10(a) and (b). Each Residual Interest Certificate surrendered for
registration of transfer or exchange shall be in substantially the form attached
hereto as Exhibit A and shall be canceled and disposed of by the Owner Trustee
in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Residual Interest Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of Residual Interest Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar shall not register
transfers or exchanges of Residual Interest Certificates for a period of 15 days
preceding the due date for any payment with respect to the Residual Interest
Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Residual Interest
Certificates. If (a) any mutilated Residual Interest Certificate shall be
surrendered to the Certificate Registrar, or if the Certificate Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Residual Interest Certificate and (b) there shall be delivered to the
Certificate Registrar and the Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Residual Interest Certificate shall have been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall execute and the Owner
Trustee, or the Administrator as the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Residual Interest Certificate, a new Residual Interest
Certificate of like tenor and denomination. In connection with the issuance of
any new Residual Interest Certificate under this Section, the Owner Trustee or
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Residual Interest Certificate issued pursuant to this
Section shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Residual
Interest Certificate shall be found at any time.
SECTION 3.6 Persons Deemed Owners. Prior to due presentation of a Residual
Interest Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Residual Interest
Certificate shall be registered in the Certificate Register as the owner of such
Residual Interest Certificate for the purpose of receiving distributions
pursuant to Section 5.2 and for all other purposes whatsoever, and neither the
Owner Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
SECTION 3.7 Access to List of Owners' Names and Addresses. The Owner
Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer, the Depositor or the Indenture Trustee in writing, a
list, in such form as the Servicer, the Depositor or the Indenture Trustee may
reasonably require, of the names and addresses of the Owners as of the most
recent Record Date. If a Certificateholder applies in writing to the Owner
Trustee, and such application states that the applicant desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Residual Interest Certificates and such application is accompanied
by a copy of the communication that such applicants propose to transmit, then
the Owner Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Owner, by receiving and holding a
Residual Interest Certificate, shall be deemed to have agreed not to hold any of
the Depositor, the Company, the Certificate Registrar or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 3.8 Maintenance of Office or Agency. The Owner Trustee shall
maintain an office or offices or agency or agencies where Residual Interest
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Residual Interest Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the Administrator's office in the Borough of
Manhattan, The City of New York as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice to the Company and
to the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Owner Trustee hereby appoints
the Indenture Trustee as Paying Agent under this Agreement. The Owner Trustee
hereby appoints the Paying Agent to establish and maintain the Certificate
Distribution Account. The Paying Agent shall make distributions to Residual
Interestholders from the Certificate Distribution Account pursuant to Section
5.2 hereof and Section 5.02 of the Sale and Servicing Agreement and shall report
the amounts of such distributions to the Owner Trustee. The Paying Agent shall
have the revocable power to withdraw funds from the Certificate Distribution
Account for the purpose of making the distributions referred to above. In the
event that the Indenture Trustee shall no longer be the Paying Agent hereunder,
the Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Owners in trust for the benefit
of the Residual Interestholders entitled thereto until such sums shall be paid
to such Owners. The Paying Agent shall return all unclaimed funds to the Owner
Trustee, and upon removal of a Paying Agent, such Paying Agent shall also return
all funds in its possession to the Owner Trustee. The provisions of Sections
7.1, 7.3, 7.4 and 8.1 shall apply to the Indenture Trustee also in its role as
Paying Agent, for so long as the Indenture Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise. Notwithstanding anything herein to
the contrary, the Paying Agent shall be the same entity as the Indenture Trustee
under the Indenture and the Sale and Servicing Agreement. If the Paying Agent
ceases to be the same entity as the Indenture Trustee under the Indenture and
the Sale and Servicing Agreement, the Paying Agent shall resign and the Owner
Trustee shall assume the duties and obligations of the Paying Agent hereunder
and under the Sale and Servicing Agreement.
SECTION 3.10 Restrictions on Transfer of Residual Interest Certificates.
(a) Each prospective purchaser and any subsequent transferee of a
Residual Interest Certificate (each, a "Prospective Owner"), other than
the Company, shall represent and warrant, in writing, to the Owner Trustee
and the Certificate Registrar and any of their respective successors that:
(i) Such Person is (A) a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act"), and is aware that the seller of the Residual
Interest Certificate may be relying on the exemption from the
registration requirements of the Securities Act provided by Rule
144A and is acquiring such Residual Interest Certificate for its own
account or for the account of one or more qualified institutional
buyers for whom it is authorized to act, or (B) an institutional
"accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act (an
"Institutional Accredited Investor") that is acquiring the Offered
Notes for its own account, or for the account of such an
Institutional Accredited Investor, for investment purposes and not
with a view to, or for offer or sale in connection with any
distribution in violation of the Security Act.
(ii) Such Person understands that the Residual Interest
Certificate have not been and will not be registered under the
Securities Act and may be offered, sold or otherwise transferred
only to a person whom the seller reasonably believes is (A) a
qualified institutional buyer or (B) an Institutional Accredited
Investor, and in accordance with any applicable securities laws of
any state of the United States.
(iii) Such Person understands that the Residual Interest
Certificates bear a legend to the following effect:
"THE RESIDUAL INTEREST IN THE TRUST REPRESENTED BY
THIS RESIDUAL INTEREST CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS. THIS RESIDUAL INTEREST CERTIFICATE MAY BE
DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
DISPOSED OF BY THE HOLDER HEREOF ONLY TO (I) A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE ACT, IN A TRANSACTION THAT IS
REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE
144A OR (II) AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE ACT (INCLUDING, BUT NOT
LIMITED TO, EMPIRE FUNDING CORP.) IN A TRANSACTION
THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS.
NO PERSON IS OBLIGATED TO REGISTER THIS RESIDUAL
INTEREST CERTIFICATE UNDER THE ACT OR ANY STATE
SECURITIES LAWS."
(iv) Such Person shall comply with the provisions of Section
3.10(b), as applicable, relating to the ERISA restrictions with
respect to the acceptance or acquisition of such Residual Interest
Certificate.
(b) Each Prospective Owner, other than the Company, shall either:
(i) represent and warrant, in writing, to the Owner Trustee
and the Certificate Registrar and any of their respective successors
that the Prospective Owner is not (A) an "employee benefit plan"
within the meaning of Section 3(3) of ERISA, or (B) a "plan" within
the meaning of Section 4975(e)(1) of the Code or (C) an entity,
including an insurance company separate account or general account,
whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan Investor") and is
not directly or indirectly purchasing such Residual Interest
Certificate on behalf of, as investment manager of, as named
fiduciary of, as trustee of, or with the assets of a Benefit Plan
Investor; or
(ii) furnish to the Owner Trustee and the Certificate
Registrar and any of their respective successors an opinion of
counsel acceptable to such persons that (A) the proposed transfer of
the Residual Interest Certificate to such Prospective Owner will not
cause any assets of the Trust to be deemed "plan assets" within the
meaning of United States Department of Labor Regulation Section
2510.3-101, or (B) the proposed transfer of the Residual Interest
Certificate will not give rise to a transaction described in Section
406 of ERISA or Section 4975(c)(1) of the Code for which a statutory
or administrative exemption is unavailable.
(c) The Residual Interest Certificates shall bear an additional legend
referring to the foregoing restrictions contained in paragraph (b) above.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters;
Covenants. (a) With respect to the following matters, the Owner Trustee shall
not take action, and the Owners shall not direct the Owner Trustee to take any
action, unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Owners in writing of the proposed action and the
Owners shall not have notified the Owner Trustee in writing prior to the 30th
day after such notice is given that such Owners have withheld consent or the
Owners have provided alternative direction:
(i) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the Home
Loans) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Home Loans);
(ii) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(iii) the amendment or other change to this Agreement or any Basic
Document in circumstances where the consent of any Noteholder is required;
(iv) the amendment or other change to this Agreement or any Basic
Document in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest of
the Owners;
(v) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by
the Note Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable;
(vi) the consent to the calling or waiver of any default of any
Basic Document;
(vii) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Basic Document;
(viii) except as provided in Article IX hereof, dissolve, terminate
or liquidate the Trust in whole or in part;
(ix) merge or consolidate the Trust with or into any other entity,
or convey or transfer all or substantially all of the Trust's assets to
any other entity;
(x) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement;
(xi) do any act that conflicts with any other Basic Document;
(xii) do any act which would make it impossible to carry on the
ordinary business of the Trust;
(xiii) confess a judgment against the Trust;
(xiv) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
(xv) cause the Trust to lend any funds to any entity; or
(xvi) change the Trust's purpose and powers from those set forth in
this Owner Trust Agreement.
(b) The Owner Trustee on behalf of the Trust agrees to abide by the
following restrictions:
(i) Other than as contemplated by the Basic Documents and related
documentation, the Trust shall not incur any indebtedness.
(ii) Other than as contemplated by the Basic Documents and related
documentation, the Trust shall not engage in any dissolution, liquidation,
consolidation, merger or sale of assets.
(iii) The Trust shall not engage in any business activity in which
it is not currently engaged other as contemplated by the Basic Documents
and related documentation.
(iv) The Trust shall not form, or cause to be formed, any
subsidiaries and shall not own or acquire any asset other than as
contemplated by the Basic Documents and related documentation.
(v) Other than as contemplated by the Basic Documents and related
documentation, the Trust shall not follow the directions or instructions
of the Company.
(c) The Owner Trustee on behalf of the Trust shall:
(i) Maintain books and records separate from any other person or
entity.
(ii) Maintain its bank accounts separate from any other person or
entity.
(iii) Not commingle its assets with those of any other person or
entity.
(iv) Conduct its own business in its own name.
(v) Other than as contemplated by the Basic Documents and related
documentation, pay its own liabilities and expenses only out of its own
funds.
(vi) Observe all formalities required under the Business Trust
Statute.
(vii) Enter into transactions with Affiliates or the Company only if
each such transaction is intrinsically fair, commercially reasonable, and
on the same terms as would be available in an arm's length transaction
with a person or entity that is not an Affiliate.
(viii) Not guarantee or become obligated for the debts of any other
entity or person.
(ix) Not hold out its credit as being available to satisfy the
obligation of any other person or entity.
(x) Not acquire the obligations or securities of its Affiliates or
the Company.
(xi) Other than as contemplated by the Basic Documents and related
documentation, not make loans to any other person or entity or buy or hold
evidence of indebtedness issued by any other person or entity.
(xii) Other than as contemplated by the Basic Documents and related
documentation, not pledge its assets for the benefit of any other person
or entity.
(xiii) Hold itself out as a separate entity from the Company and not
conduct any business in the name of the Company.
(xiv) Correct any known misunderstanding regarding its separate
identity.
(xv) Not identify itself as a division of any other person or
entity.
So long as the Notes or any other amounts owed under the Indenture remain
outstanding, the Trust shall not amend this Section 4.1 without the prior
written consent of 100% of the Voting Interests of the Notes and the consent of
each Rating Agency, in addition to the requirements under Section 11.1.
(d) The Owner Trustee shall not have the power, except upon the direction
of the Owners and, subject to Section 11.16 of the Indenture, 100% of the
Noteholders, and to the extent otherwise consistent with the Basic Documents, to
(i) remove or replace the Servicer, the Indenture Trustee or the Grantor
Trustee, (ii) institute proceedings to have the Trust declared or adjudicated a
bankrupt or insolvent, (iii) consent to the institution of bankruptcy or
insolvency proceedings against the Trust, (iv) file a petition or consent to a
petition seeking reorganization or relief on behalf of the Trust under any
applicable federal or state law relating to bankruptcy, (v) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any
similar official) of the Trust or a substantial portion of the property of the
Trust, (vi) make any assignment for the benefit of the Trust's creditors, (vii)
cause the Trust to admit in writing its inability to pay its debts generally as
they become due, (viii) take any action, or cause the Trust to take any action,
in furtherance of any of the foregoing (any of the above, a "Bankruptcy
Action"). So long as the Indenture remains in effect, no Certificateholder shall
have the power to take, and shall not take, any Bankruptcy Action with respect
to the Trust or the Company or direct the Owner Trustee to take any Bankruptcy
Action with respect to the Trust or the Company.
SECTION 4.2 Action by Owners with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the direction of the Owners, to
(a) remove the Administrator under the Administration Agreement pursuant to
Section 8 thereof, (b) appoint a successor Administrator pursuant to Section 8
of the Administration Agreement, (c) remove the Servicer under the Sale and
Servicing Agreement pursuant to Section 10.01 thereof or (d) sell the Grantor
Trust Certificate after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Owners.
SECTION 4.3 Action by Owners with Respect to Bankruptcy. The Owner Trustee
shall not have the power to commence a voluntary Bankruptcy Action relating to
the Trust unless the conditions specified in Section 4.1 (d) are satisfied.
SECTION 4.4 Restrictions on Owners' Power. The Owners shall not direct the
Owner Trustee to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Basic Documents or would be contrary to
Section 2.3 nor shall the Owner Trustee be obligated to follow any such
direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken by the Owners under this Agreement may be taken by the
Majority Residual Interestholders. Except as expressly provided herein, any
written notice of the Owners delivered pursuant to this Agreement shall be
effective if signed by the Majority Residual Interestholders at the time of the
delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Trust Account. The Owner Trustee shall cause
the Servicer, for the benefit of the Owners, to establish and maintain with U.S.
Bank National Association for the benefit of the Owner Trustee one or more
Eligible Accounts which, so long as the Indenture Trustee holds such Trust
Account on behalf of the Owner Trustee, shall be entitled "Certificate
Distribution Account, U.S. Bank National Association, on behalf of the Owner
Trustee, in trust for the Empire Funding Home Loan Asset Backed Securities,
Series 1998-2". Funds shall be deposited in the Certificate Distribution Account
as required by the Sale and Servicing Agreement.
All of the right, title and interest of the Owner Trustee and the Paying
Agent in all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof shall be held for the benefit of the Owners
and such other persons entitled to distributions therefrom. Except as otherwise
expressly provided herein or in the Sale and Servicing Agreement, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee or Paying Agent for the benefit of the Owners and the
Servicer.
In addition to the foregoing, the Certificate Distribution Account is a
Trust Account under the Sale and Servicing Agreement and constitutes part of the
Owner Trust Estate pledged by the Trust to the Indenture Trustee under the
Indenture. The Certificate Distribution Account shall be subject to and
established and maintained in accordance with the applicable provisions of the
Sale and Servicing Agreement and the Indenture, including, without limitation,
the provisions of Section 5.02(c) of the Sale and Servicing Agreement regarding
distributions from the Certificate Distribution Account.
The Company agrees to direct and shall have the sole authority to direct
the Owner Trustee or Indenture Trustee or their successor in interest, as to the
Permitted Investments in which the funds on deposit in the Trust Accounts (as
such term is defined in the Sale and Servicing Agreement) may be invested.
SECTION 5.2 Application Of Trust Funds.
(a) On each Payment Date, the Owner Trustee or Indenture Trustee, on
behalf of the Owner Trustee, shall direct the Paying Agent to distribute to the
Servicer and the Residual Interestholders from amounts on deposit in the
Certificate Distribution Account the distributions as provided in Section
5.02(b) of the Sale and Servicing Agreement with respect to such Payment Date.
(b) On each Payment Date, the Owner Trustee shall cause the Paying Agent
to send to DTC and each Residual Interestholder the statement provided to the
Owner Trustee by the Servicer pursuant to Section 6.01 of the Sale and Servicing
Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to an Owner, such tax shall reduce the amount
otherwise distributable to the Owner in accordance with this Section. The Owner
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Owners sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to an Owner
shall be treated as cash distributed to such Owner at the time it is withheld by
the Trust and remitted to the appropriate taxing authority. In the event of any
claimed overwithholding, Owners shall have no claim for recovery against the
Trust or other Owners. If the amount withheld was not withheld from actual
distributions, the Trust may, at its option, (i) require the Owner to reimburse
the Trust for such withholding (and each Owner agrees to reimburse the Trust
promptly following such request) or (ii) reduce any subsequent distributions by
the amount of such withholding. If the Owner Trustee determines that a
withholding tax is payable with respect to a distribution (such as a
distribution to an Owner (or any other beneficial owner of the Owner Trust) that
is not a U.S. Person and that has not established an applicable exemption from
withholding (such as an effective Form W-8, Form 1001 or Form 4224), the Owner
Trustee shall in its sole discretion withhold such amounts as it determines are
required to be withheld in accordance with this paragraph (c). In the event that
an Owner wishes to apply for a refund of any such withholding tax, the Owner
Trustee shall reasonably cooperate with such owner in making such claim so long
as such Owner agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
SECTION 5.3 Method of Payment. Subject to Section 3.10, distributions
required to be made to Owners on any Payment Date shall be made to each Owner
of, record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Owner shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date; or, if not, by check mailed to such Owner at
the address of such holder appearing in the Certificate Register.
SECTION 5.4 Segregation of Moneys; No Interest. Subject to Sections 4.1
and 5.2, moneys received by the Owner Trustee hereunder and deposited into the
Certificate Distribution Account will be segregated except to the extent
required otherwise by law or the Sale and Servicing Agreement and shall be
invested in Permitted Investments at the direction of the Company. The Owner
Trustee shall not be liable for payment of any interest in respect of such
moneys.
SECTION 5.5 Accounting and Reports to the Certificateholder, Owners, the
Internal Revenue Service and Others. The Owner Trustee shall deliver to each
Owner, as may be required by the Code and applicable Treasury Regulations, or as
may be requested by such Owner, such information, reports or statements as may
be necessary to enable each Owner to prepare its federal and state income tax
returns. Consistent with the Trust's characterization for tax purposes as a
security arrangement for the issuance of non-recourse debt so long as the
Company or any other Person is the sole Owner, no federal income tax return
shall be filed on behalf of the Trust unless either (i) the Owner Trustee shall
receive an Opinion of Counsel that, based on a change in applicable law
occurring after the date hereof, or as a result of a transfer by the Company
permitted by Section 3.4, the Code requires such a filing or (ii) the Internal
Revenue Service shall determine that the Trust is required to file such a
return. In the event that there shall be two or more beneficial owners of the
Trust, the Owner Trustee shall inform the Indenture Trustee in writing of such
event, (x) the Owner Trustee shall prepare or shall cause to be prepared federal
and, if applicable, state or local partnership tax returns required to be filed
by the Trust and shall remit such returns to the Company (or if the Company no
longer owns any Residual Interest Certificates, the Owner designated for such
purpose by the Company to the Owner Trustee in writing) at least (5) days before
such returns are due to be filed, and (y) capital accounts shall be maintained
for each Owner (or beneficial owner) in accordance with the Treasury Regulations
under Section 704(b) of the Code reflecting each such Owner's (or beneficial
owner's) share of the income, gains, deductions, and losses of the Trust and/or
guaranteed payments made by the Trust and contributions to, and distributions
from, the Trust. The Company (or such designee Owner, as applicable) shall
promptly sign such returns and deliver such returns after signature to the Owner
Trustee and such returns shall be filed by the Owner Trustee with the
appropriate tax authorities. In the event that a "tax matters partner" (within
the meaning of Code Section 6231(a)(7) is required to be appointed with respect
to the Trust, the Company is hereby designated as tax matters partner or, if the
Company is not an Owner, the Owner selected by a majority of the Owners (by
Percentage Interest) shall be designated as tax matters partner. In no event
shall the Owner Trustee or the Company (or such designee Owner, as applicable)
be liable for any liabilities, costs or expenses of the Trust or the Noteholders
arising out of the application of any tax law, including federal, state, foreign
or local income or excise taxes or any other tax imposed on or measured by
income (or any interest, penalty or addition with respect thereto or arising
from a failure to comply therewith) except for any such liability, cost or
expense attributable to any act or omission by the Owner Trustee or the Company
(or such designee Owner, as applicable), as the case may be, in breach of its
obligations under this Agreement.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver or cause to be executed and delivered the Notes,
the Residual Interest Certificates and the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party and
any amendment or other agreement or instrument described in Article III, in each
case, in such form as the Company shall approve, as evidenced conclusively by
the Owner Trustee's execution thereof, and, on behalf of the Trust, to direct
the Indenture Trustee to authenticate and deliver Classes of Securities in the
following aggregate principal amounts: Class A-1 Notes, $57,666,000; Class A-2
Notes, $56,904,000; Class A-3 Notes, $23,089,000; Class A-4 Notes, $36,212,000;
Class A-5 Notes, $22,516,500; Class A-6 Notes, $19,500,000; Class A-IO Notes,
$30,300,000; Class M-1 Notes, $30,300,000; Class M-2 Notes, $21,967,500; Class
B-1 Notes, $25,755,000; and Class B-2 Notes, $9,090,000. The Administrator on
behalf of the Owner Trustee shall authenticate and deliver the Residual Interest
Certificates. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust, pursuant to
the Basic Documents.
SECTION 6.2 General Duties. It shall be the duty of the Owner Trustee:
(a) to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the Owners,
subject to the Basic Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator or the Indenture Trustee has agreed in
the Administration Agreement or this Agreement, respectively, to perform any act
or to discharge any duty of the Owner Trustee or the Trust hereunder or under
any Basic Document, and the Owner Trustee shall not be held liable for the
default or failure of the Administrator or the Indenture Trustee to carry out
its obligations under the Administration Agreement or this Agreement,
respectively; and
(b) to obtain and preserve, the Issuer's qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Owner Trust
Estate.
SECTION 6.3 Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Owners may by written instruction direct the Owner Trustee in the
management of the Trust but only to the extent consistent with the limited
purpose of the Trust. Such direction may be exercised at any time by written
instruction of the Owners pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any Basic Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Owners requesting
instruction from the Owners as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Owners received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the Owners, and
shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Owners requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interests of the Owners, and shall have no
liability to any Person for such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement, the Basic
Documents or in Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of, or otherwise deal with the Owner Trust Estate, or to otherwise take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement, any Basic Document or in any document
or written instruction received by the Owner Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Basic Document. The Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Owner Trust Estate.
SECTION 6.5 No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3 or
(b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for Federal income tax purposes. The
Owners shall not direct the Owner Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement and the Basic Documents.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct or gross negligence or (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
7.3 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made by
a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or the Owners;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
Document if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Depositor or the Company or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the certificate of
authentication on the Residual Interest Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty, or obligation to any
Noteholder or to any Owner, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Depositor, the Company, the Indenture Trustee, the
Grantor Trustee or the Servicer under any of the Basic Documents or otherwise
and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture, the Grantor Trustee under
the Grantor Trust Agreement or the Servicer under the Sale and Servicing
Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Owners, unless such Owners have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in any
Basic Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its gross negligence or willful misconduct in the
performance of any such act provided, that the Owner Trustee shall be liable for
its negligence or willful misconduct in the event that it assumes the duties and
obligations of the Indenture Trustee under the Sale and Servicing Agreement
pursuant to Section 10.5.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish (a)
to the Owners promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Basic Documents and (b) to Noteholders promptly upon written request therefor,
copies of the Sale and Servicing Agreement, the Administration Agreement and the
Owner Trust Agreement.
SECTION 7.3 Representations and Warranties.
(a) The Owner Trustee hereby represents and warrants to the Depositor and
the Company, for the benefit of the Owners, that:
(i) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this Agreement
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any Federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
(b) The Paying Agent hereby represents and warrants to the Depositor and
the Company that:
(i) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this Agreement
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any Federal or Minnesota law, governmental rule or regulation
governing the banking or trust powers of the Paying Agent or any judgment
or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6 Owner Trustee Not Liable for Residual Interest Certificates or
Home Loans. The recitals contained herein and in the Residual Interest
Certificates (other than the signature and countersignature of the Owner Trustee
on the Residual Interest Certificates) shall be taken as the statements of the
Depositor and the Company, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the
Residual Interest Certificates (other than the signature and countersignature of
the Owner Trustee on the Residual Interest Certificates and as specified in
Section 7.3) or the Notes, or of any Home Loans or related documents. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of the Grantor Trust
Certificate, any Home Loan, or the perfection and priority of any security
interest created by any Home Loan or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Owner Trust Estate or
its ability to generate the payments to be distributed to Owners under this
Agreement or the Noteholders under the Indenture, including, without limitation:
the existence, condition and ownership of any Mortgaged Property; the existence
and enforceability of any insurance thereon; the existence and contents of any
Home Loan on any computer or other record thereof, the validity of the
assignment of the Grantor Trust Certificate to the Trust or of any intervening
assignment; the completeness of any Home Loan; the performance or enforcement of
any Home Loan; the compliance by the Depositor, the Company or the Servicer with
any warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee.
SECTION 7.7 Owner Trustee May Own Residual Interest Certificates and
Notes. The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of Residual Interest Certificates or Notes and may deal with
the Depositor, the Company, the Administrator, the Indenture Trustee and the
Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
SECTION 7.8 Licenses. The Owner Trustee shall cause the Trust to use its
best efforts to obtain and maintain the effectiveness of any licenses required
in connection with this Agreement and the Basic Documents and the transactions
contemplated hereby and thereby until such time as the Trust shall terminate in
accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE AND PAYING AGENT
SECTION 8.1 Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Company and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Company for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder. The Paying Agent shall receive as compensation
for its services hereunder such fees, if any, as have been separately agreed
upon before the date hereof between the Company and the Paying Agent.
SECTION 8.2 Indemnification. The Company shall be liable as primary
obligor, and the Servicer as secondary obligor pursuant to the Administration
Agreement, for, and shall indemnify the Owner Trustee, the Paying Agent and
their 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 the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee or the Paying Agent
hereunder, except only that the Company shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the provisions of Section 9.01(d) of the
Sale and Servicing Agreement, provided that a standard of gross negligence shall
apply to the Owner Trustee. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In any event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's or Paying
Agent's choice of legal counsel shall be subject to the approval of the Company,
which approval shall not be unreasonably withheld.
SECTION 8.3 Payments to the Owner Trustee and Paying Agent. Any amounts
paid to the Owner Trustee and/or Paying Agent pursuant to this Article VIII
shall be deemed not to be a part of the Owner Trust Estate immediately after
such payment.
ARTICLE IX
TERMINATION OF OWNER TRUST AGREEMENT
SECTION 9.1 Termination of Owner Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall terminate
and be of no further force or effect on the earlier of: (i) the satisfaction and
discharge of the Indenture pursuant to Section 4.01 of the Indenture and the
termination of the Sale and Servicing Agreement; and (ii) the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy (the late ambassador of the United States to the Court of St. James's)
alive on the date hereof. The bankruptcy, liquidation, dissolution, death or
incapacity of any Owner shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Owner's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Owner Trust Estate nor (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) The Residual Interest Certificates shall be subject to an early
redemption or termination at the option of the Company in the manner and subject
to the provisions of Section 11.02 of the Sale and Servicing Agreement.
(c) Except as provided in Sections 9.1(a) and (b) above, none of the
Depositor, the Company nor any Owner shall be entitled to revoke or terminate
the Trust.
(d) Notice of any termination of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Residual Interest
Certificates to the Paying Agent for payment of the final distributions and
cancellation, shall be given by the Owner Trustee to the Certificateholders and
the Rating Agencies mailed within five Business Days of receipt by the Owner
Trustee of notice of such termination pursuant to Section 9.1(a) or (b) above,
which notice given by the Owner Trustee shall state (i) the Payment Date upon or
with respect to which final payment of the Residual Interest Certificates shall
be made upon presentation and surrender of the Residual Interest Certificates at
the office of the Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Residual Interest Certificates at the office of the Paying
Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Residual Interest Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.02 of the Sale and Servicing Agreement.
In the event that all of the Certificateholders shall not surrender their
Residual Interest Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Residual Interest Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Residual Interest Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Residual Interest Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Paying Agent to the Residual
Interestholders on a pro rata basis.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Business Trust Statute; authorized to exercise corporate powers having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or state authorities; and having (or having a parent
which has) a long-term rating of at least "A" by Fitch, DCR, and S&P. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Owner Trustee . The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator and the Indenture Trustee.
Upon receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Owner Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Owners, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator fails to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided
further that the Owner Trustee shall mail notice of such merger or consolidation
to the Rating Agencies.
SECTION 10.5 Appointment of Co-Owner Trustee or Separate Owner Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Mortgaged Property may at the time be located,
and for the purpose of performing certain duties and obligations of the Owner
Trustee with respect to the Trust and the Residual Interest Certificates under
the Sale and Servicing Agreement, the Administrator and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-owner
trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 25 days after the receipt by it of a request so to do,
the Owner Trustee shall have the power to make such appointment. No co-owner
trustee or separate owner trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1 and no
notice of the appointment of any co-trustee or separate owner trustee shall be
required pursuant to Section 10.1.
Each separate owner trustee and co-owner trustee shall, to the extent
permitted by law, be appointed and act subject to the following provision and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate owner trustee or co-owner trustee
jointly (it being understood that such separate owner trustee or co-owner
trustee is not authorized to act separately without the Owner Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate owner trustee or co-owner trustee, but solely at the direction of
the Owner Trustee; provided that Paying Agent, in performing its duties
and obligations under the Sale and Servicing Agreement, may act separately
in its capacity as Indenture Trustee without the Owner Trustee joining in
such Acts;
(ii) no owner trustee under this Agreement shall be personally
liable by reason of any act or omission of any other owner trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate owner trustee or
co-owner trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to the separate owner trustees and co-owner trustees,
as if given to each of them. Every instrument appointing any separate owner
trustee or co-owner trustee, other than this Agreement, shall refer to this
Agreement and to the conditions of this Article. Each separate owner trustee and
co-owner trustee, upon its acceptance of appointment, shall be vested with the
estates specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate owner trustee or co-owner trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate owner trustee or
co-owner trustee shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Indenture Trustee, in its capacity as Paying Agent, shall not have any
rights, duties or obligations except as expressly provided in this Agreement and
the Sale and Servicing Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments. This Agreement may be amended by
the Depositor, the Company and the Owner Trustee, with prior written notice to
the Rating Agencies, but without the consent of any of the Noteholders or the
Owners or the Indenture Trustee, to cure any ambiguity, to correct or supplement
any provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this Agreement
or of modifying in any manner the rights of the Noteholders or the Owners
provided, however, that such action shall not adversely affect in any material
respect the interests of any Noteholder or Owner. An amendment described above
shall be deemed not to adversely affect in any material respect the interests of
any Noteholder or Owner if (i) an opinion of counsel is obtained to such effect,
and (ii) the party requesting the amendment satisfies the Rating Agency
Condition with respect to such amendment.
This Agreement may also be amended from time to time by the Depositor, the
Company and the Owner Trustee, with the prior written consent of the Rating
Agencies and with the prior written consent of the Indenture Trustee, the
Holders (as defined in the Indenture) of Notes evidencing more than 50% of the
Outstanding Amount of the Notes and the Majority Residual Interestholders, 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 Owners; provided, however, 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 the Grantor Trust Certificate or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes or the Percentage Interests required to
consent to any such amendment, in either case of clause (a) or (b) without the
consent of the holders of all the outstanding Notes, and in the case of clause
(b) without the consent of the holders of all the outstanding Residual Interest
Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee, the Grantor Trustee
and each of the Rating Agencies.
It shall not be necessary for the consent of Owners, the Noteholders or
the Indenture Trustee 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 Owners provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Owner Trust Estate in Owners. The Owners
shall not have legal title to any part of the Owner Trust Estate. The Owners
shall be entitled to receive distributions with respect to their undivided
ownership interest therein only in accordance with Articles V and IX. No
transfer, by operation of law or otherwise, of any right, title, or interest of
the Owners to and in their ownership interest in the Owner Trust Estate shall
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Owner Trust Estate.
SECTION 11.3 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Company, the Owners, the Administrator, the Paying Agent and, to the extent
expressly provided herein, the Indenture Trustee, the Grantor Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.4 Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing, mailed by
certified mail, postage prepaid, return receipt requested, and shall be deemed
given upon actual receipt by the intended recipient, at the following addresses:
(i) if to the Owner Trustee, its Corporate Trust Office; (ii) if to the
Depositor, PaineWebber Mortgage Acceptance Corporation IV, 1285 Avenue of the
Americas, New York, New York 10019, Attention: John Fearey, Esq., General
Counsel; (iii) if to the Company, Empire Funding Corp., 9737 Great Hills Trail,
Austin, Texas 78759, Attention: Richard N. Steed; (iv) if to the Indenture
Trustee, its Corporate Trust Office; (v) if to the Paying Agent, U.S. Bank
National Association, 180 East Fifth Street, St. Paul, Minnesota 55101;
Attention: Structured Finance/Empire Funding 1998-2 or, as to each such party,
at such other address as shall be designated by such party in a written notice
to each other party.
(b) Any notice required or permitted to be given to an Owner shall be
given by first-class mail, postage prepaid, at the address of such Owner as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Owner receives such notice.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
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 11.6 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Company, the Owner Trustee and its successors and each owner and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by an Owner
shall bind the successors and assigns of such Owner.
SECTION 11.8 No Petition. The Owner Trustee, by entering into this
Agreement, each Owner, by accepting a Residual Interest Certificate, and the
Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Company, the Depositor or the Trust, or join in any institution
against the Company or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or law in connection with any
obligations relating to the Residual Interest Certificates, the Notes, this
Agreement or any of the Basic Documents.
SECTION 11.9 No Recourse. Each Owner by accepting a Residual Interest
Certificate acknowledges that such Residual Interest Certificate represents a
beneficial interest in the Trust only and does not represent an interest in or
an obligation of the Company, the Servicer, the Depositor, the Administrator,
the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Residual Interest
Certificates or the Basic Documents.
SECTION 11.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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 11.12 Residual Interest Transfer Restrictions. The Residual
Interest may not be acquired by or for the account of a Benefit Plan Investor.
By accepting and holding a Residual Interest Certificate, the Owner thereof
shall be deemed to have represented and warranted that it is not a Benefit Plan
Investor.
<PAGE>
IN WITNESS OF, the parties hereto have caused this Owner Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV,
Depositor
By: ______________________________________
Name:
Title:
EMPIRE FUNDING CORP.
By: ______________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: ______________________________________
Emmett R. Harmon
Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Paying Agent
By: ______________________________________
Name:
Title:
<PAGE>
EXHIBIT A
TO THE OWNER TRUST AGREEMENT
FORM OF RESIDUAL INTEREST CERTIFICATE
THE RESIDUAL INTEREST IN THE TRUST REPRESENTED BY THIS RESIDUAL INTEREST
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS RESIDUAL
INTEREST CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
DISPOSED OF BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE ACT (INCLUDING, BUT NOT LIMITED TO, EMPIRE
FUNDING CORP.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS RESIDUAL INTEREST
UNDER THE ACT OR ANY STATE SECURITIES LAWS.
EXCEPT AS PROVIDED IN SECTION 3.10(B) OF THE OWNER TRUST AGREEMENT, NO TRANSFER
OF THIS RESIDUAL INTEREST CERTIFICATE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE
MADE UNLESS THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE FROM THE TRANSFEREE TO
THE EFFECT THAT SUCH TRANSFEREE (I) IS NOT (A) AN "EMPLOYEE BENEFIT PLAN" WITHIN
THE MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, (B) A "PLAN" WITHIN THE MEANING OF SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (C) AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY (EACH,
A "BENEFIT PLAN INVESTOR"), AND (II) IS NOT DIRECTLY OR INDIRECTLY PURCHASING
SUCH RESIDUAL INTEREST CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A BENEFIT PLAN
INVESTOR.
<PAGE>
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
RESIDUAL INTEREST CERTIFICATE
No. ______
THIS CERTIFIES THAT _______________________________ (the "Owner") is the
registered owner of a ____% residual interest in Empire Funding Home Loan Owner
Trust 1998-2 (the "Trust") existing under the laws of the State of Delaware and
created pursuant to the Owner Trust Agreement dated as of June 1, 1998 (the
"Owner Trust Agreement") between PaineWebber Mortgage Acceptance Corporation IV,
as Depositor, Empire Funding Corp., as the Company, Wilmington Trust Company,
not in its individual capacity but solely in its fiduciary capacity as owner
trustee under the Owner Trust Agreement (the "Owner Trustee") and U.S. Bank
National Association, as Paying Agent (the "Paying Agent"). Initially
capitalized terms used but not defined herein have the meanings assigned to them
in the Owner Trust Agreement. The Owner Trustee, on behalf of the Issuer and not
in its individual capacity, has executed this Residual Interest Certificate by
one of its duly authorized signatories as set forth below. This Residual
Interest Certificate is one of the Residual Interest Certificates referred to in
the Owner Trust Agreement and is issued under and is subject to the terms,
provisions and conditions of the Owner Trust Agreement to which the holder of
this Residual Interest Certificate by virtue of the acceptance hereof agrees and
by which the holder hereof is bound. Reference is hereby made to the Owner Trust
Agreement and the Sale and Servicing Agreement for the rights of the holder of
this Residual Interest Certificate, as well as for the terms and conditions of
the Trust created by the Owner Trust Agreement.
The holder, by its acceptance hereof, agrees not to transfer this Residual
Interest Certificate except in accordance with terms and provisions of the Owner
Trust Agreement.
<PAGE>
THIS RESIDUAL INTEREST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Residual Interest Certificate to be
duly executed.
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee under the Owner
Trust Agreement
By: _________________________________________
Authorized Signatory
DATED: June __, 1998
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Owner
Trust Agreement.
----------------------------.
as Authenticating Agent
By: __________________________
Authorized Signatory
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: _______________
____________________________________*/
Signature Guaranteed:
____________________________________*/
- -------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
<PAGE>
EXHIBIT B
TO THE OWNER TRUST AGREEMENT
CERTIFICATE OF TRUST OF
EMPIRE FUNDING HOME LOAN OWNER TRUST 1998-2
THIS Certificate of Trust of Empire Funding Home Loan Owner Trust 1998-2
(the "Trust"), dated June ___, 1998, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, and U.S.
Bank National Association, as paying agent, to form a business trust under the
Delaware Business Trust Act (12 Del. Code, ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is Empire Funding
Home Loan Owner Trust 1998-2.
2. Delaware Trustee. The name and business address of the trustee of the
Trust, in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
* * *
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the owner trustee and paying
agent of the Trust, have executed this Certificate of Trust as of the date first
above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as owner trustee under
an Owner Trust Agreement dated as
of June 1, 1998
By: ________________________________
Name:
Title:
================================================================================
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV
(Depositor)
and
U.S. BANK NATIONAL ASSOCIATION
(Grantor Trustee)
and
EMPIRE FUNDING CORP.
(Transferor)
--------------------------------------
GRANTOR TRUST AGREEMENT
Dated as of June 1, 1998
--------------------------------------
EMPIRE FUNDING GRANTOR TRUST 1998-2
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................
ARTICLE II
CONVEYANCE OF HOME LOANS; ORIGINAL ISSUANCE
OF GRANTOR TRUST CERTIFICATE
Section 2.01. Conveyance of the Home Loans.....................................
Section 2.02. Acceptance by Grantor Trustee; Authentication of Grantor
Trust Certificate.........................4
Section 2.03. Ownership and Possession of Home Loan Files......................
Section 2.04. Books and Records................................................
Section 2.05. Delivery of Home Loan Documents..................................
Section 2.06. Acceptance by the Grantor Trustee of the Home Loans;
Certain Substitutions; Certification by the Custodian............
Section 2.07. Reserved.........................................................
Section 2.08. Release and Reconveyance of Home Loans...........................
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor..................
ARTICLE IV
THE GRANTOR TRUST CERTIFICATE
Section 4.01. The Grantor Trust Certificate....................................
Section 4.02. Registration, Transfer and Exchange of Grantor Trust Certificate.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Grantor Trust Certificate...
Section 4.04. Persons Deemed Owners............................................
Section 4.05. Maintenance of Office or Agency..................................
ARTICLE V
GRANTOR TRUST ACCOUNTS; PAYMENTS TO GRANTOR TRUST HOLDER
Section 5.01. Collection Account...............................................
Section 5.02. Distributions from Collection Account............................
ARTICLE VI
CONCERNING THE GRANTOR TRUSTEE
Section 6.01. Duties of Grantor Trustee........................................
Section 6.02. Certain Matters Affecting the Grantor Trustee....................
Section 6.03. Grantor Trustee not Required to Make Investigation...............
Section 6.04. Grantor Trustee's Fees...........................................
Section 6.05. Compliance with Code.............................................
Section 6.06. Eligibility Requirements for Grantor Trustee.....................
Section 6.07. Resignation and Removal of Grantor Trustee.......................
Section 6.08. Successor Grantor Trustee........................................
Section 6.09. Merger or Consolidation of Grantor Trustee.......................
Section 6.10. Authenticating Agent.............................................
ARTICLE VII
TERMINATION
Section 7.01. Termination......................................................
Section 7.02. Procedure Upon Termination of Grantor Trust......................
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Binding Nature of Agreement; Assignment..........................
Section 8.02. Entire Agreement.................................................
Section 8.03. Amendment........................................................
Section 8.04. Governing Law....................................................
Section 8.05. Notices..........................................................
Section 8.06. Severability of Provisions.......................................
Section 8.07. Indulgences; No Waivers..........................................
Section 8.08. Headings Not To Affect Interpretation............................
Section 8.09. Benefits of Agreement............................................
Section 8.10. Counterparts.....................................................
Section 8.11. Security Interest................................................
EXHIBIT A FORM OF GRANTOR TRUST CERTIFICATE
EXHIBIT B FORM OF INVESTMENT REPRESENTATION LETTER
<PAGE>
THIS GRANTOR TRUST AGREEMENT ("Grantor Trust Agreement" or "Agreement"),
dated as of June 1, 1998, by and among PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, as Depositor, U.S. BANK NATIONAL ASSOCIATION, as Grantor Trustee
and EMPIRE FUNDING CORP., as Transferor.
The parties hereto intend that this Grantor Trust Agreement be construed
so as to create an "investment trust" formed to facilitate the direct investment
by the Grantor Trust Holder in the assets of the Grantor Trust Estate, within
the meaning of Section 301.7701-4(c) of the regulations of the U.S. Department
of the Treasury, and not a partnership or an association taxable as a
corporation, and that the rights, duties, and powers of the Grantor Trustee
hereunder be construed so as not to confer on the Grantor Trustee any power to
vary the investment of the Grantor Trust Holder by taking advantage of market
fluctuations to improve its rate of return.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article. Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Sale and
Servicing Agreement.
Act: The Securities Act of 1933, as amended, and as it may be amended from
time to time.
Authenticating Agent: Any authenticating agent appointed by the Grantor
Trustee pursuant to Section 6.10.
Certificate Register and Certificate Registrar: Respectively, the register
maintained pursuant to and the registrar provided for in Section 4.02. The
initial Certificate Registrar is the Grantor Trustee.
Corporate Trust Office: The principal office of the Grantor Trustee at
which at any particular time its corporate trust business shall be administered,
which office at date of execution of this Agreement is located at 180 East Fifth
Street, St. Paul, Minnesota 55101; Attention: Corporate Trust Department, or at
such other address as the Grantor Trustee may designate from time to time by
notice to the Grantor Trust Holder and the Issuer, or the principal corporate
trust office of any successor Grantor Trustee at the address designated by such
successor Grantor Trustee by notice to the Grantor Trust Holder and the Issuer.
Custodian: U.S. Bank National Association, a national banking association,
as custodian pursuant to the Custodial Agreement.
Cut-Off Date: Close of business on May 31, 1998.
DCR: Duff & Phelps Credit Rating Co.
ERISA: The Employee Retirement Income Security Act of 1974, as amended
from time to time.
Grantor Trust Certificate: The pass-through certificate issued pursuant to
this Agreement, in substantially the form attached hereto as Exhibit A.
Grantor Trustee: U.S. Bank National Association, or any successor grantor
trustee appointed as herein provided.
Grantor Trustee Fee: With respect to any Payment Date, the fee payable to
the Grantor Trustee pursuant to Section 6.04 as compensation for its activities
hereunder.
Grantor Trust Estate: The corpus of the trust created by this Agreement,
consisting of (i) such Home Loans as from time to time are subject to this
Agreement as listed in the Home Loan Schedule, as the same may be amended or
supplemented from time to time including by removal of Deleted Home Loans and
the addition of Qualified Substitute Home Loans, together with the Servicer's
Home Loan Files and the Grantor Trustee's Home Loan Files relating thereto and
all proceeds thereof, (ii) except with respect to any Unsecured Home Loans, the
Mortgages and security interests in Mortgaged Properties, (iii) all payments in
respect of interest on the Home Loans received on or after the Cut-Off Date
(less 73% of the interest payments received during the first Due Period which
shall be retained by the Transferor) and all payments in respect of principal
received after the Cut-Off Date, (iv) such assets as from time to time are
identified as Foreclosure Property, (v) such assets and funds as are from time
to time deposited in the Collection Account, including amounts on deposit in
such accounts which are invested in Permitted Investments, (vi) the Depositor's
rights under all insurance policies with respect to the Home Loans and any
Insurance Proceeds, (vii) Net Liquidation Proceeds and Released Mortgaged
Property Proceeds, (viii) all rights of the Depositor under the Home Loan
Purchase Agreement (other than the Depositor's rights under Article V of the
Home Loan Purchase Agreement, which the Depositor shall not assign to the
Grantor Trustee) pursuant to which the Depositor acquired the Home Loans from
the Transferor, and (ix) all proceeds of any of the foregoing.
Grantor Trust Holder: The Person in whose name the Grantor Trust
Certificate is registered in the Certificate Register.
Investment Representation Letter: As defined in Section 3.02(d).
Non-Recordation State: Any state with respect to which the Transferor
shall have delivered to the Grantor Trustee (and to each Rating Agency, in the
case of any state in which 10% or more by Principal Balance of the Mortgaged
Properties are located as of the Cut-Off Date) an opinion, memorandum or other
written assurance of counsel in a form reasonably acceptable to the Grantor
Trustee (and, if applicable, to each Rating Agency), to the effect that, as to
any Home Loan with respect to which the related Mortgaged Property is located in
such state, recordation of an Assignment of Mortgage in such state is not
necessary to (i) transfer title to the related Mortgage Note (a) from the
Transferor to the Depositor and (b) from the Depositor to the Grantor Trustee
and (ii) pledge to the Grantor Trustee all of the Depositor's rights under such
Mortgage Note.
Non-U.S. Person: A Person that is not considered under the Code (i) a
citizen or resident of the United States, (ii) a corporation, partnership
(except to the extent provided in applicable Treasury regulations) or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, (iii) an estate whose income from sources without
the United States is includible in gross income for United States federal income
tax purposes regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States fiduciaries have the authority to
control all substantial decisions of such trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
Officers' Certificate: Certificate signed on behalf of the applicable
entity by the Chairman of the Board, the Vice Chairman of the Board, the
President, any Senior Vice President or Vice President or Managing Director or
an Assistant Vice President (each, however denominated), the Treasurer, the
Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Trust
Officer or other officer of the Depositor, the Transferor or the Corporate Trust
Office of the Grantor Trustee, as the case may be, customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, or an authorized officer of the Depositor, and delivered to
the Depositor and/or the Grantor Trustee, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the Grantor
Trustee, who, in the case of an opinion required pursuant to Section 4.02, may
be outside or salaried counsel for the Grantor Trust Holder or any affiliate of
the Grantor Trust Holder.
Percentage Interest: With respect to the Grantor Trust Certificate, the
undivided percentage interest as specified on the face of the Grantor Trust
Certificate.
Plan: As defined in Section 4.02(b).
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated as
of June 1, 1998, among PaineWebber Mortgage Acceptance Corporation, as
depositor, Empire Funding Corp., as servicer and transferor, Empire Funding Home
Loan Owner Trust 1998-2, as issuer, and U.S. Bank National Association, as
indenture trustee and grantor trustee.
Single Certificate: With respect to the Grantor Trust Certificate, a
certificate representing a minimum denomination of 100% Percentage Interest.
ARTICLE II
CONVEYANCE OF HOME LOANS;
ORIGINAL ISSUANCE OF GRANTOR TRUST CERTIFICATE
Section 2.01. Conveyance of the Home Loans. As of the Closing Date and
concurrently with the execution and delivery hereof, in consideration of the
Grantor Trustee's delivery of the Grantor Trust Certificate and a collateral
assignment of the Collection Account to the Depositor or its designee, upon the
order of the Depositor, the Depositor, does hereby sell, transfer, assign, set
over and otherwise convey to the Grantor Trustee, without recourse, but subject
to the other terms and provisions of this Agreement, all of the right, title and
interest of the Depositor in and to the Grantor Trust Estate. The foregoing
sale, transfer, assignment, set over and conveyance does not, and is not
intended to, result in a creation or an assumption by the Grantor Trustee of any
obligation of the Depositor, the Transferor or any other person in connection
with the Grantor Trust Estate or under any agreement or instrument relating
thereto except as specifically set forth herein. Grantor Trustee does hereby
collaterally assign all of its rights in and to the Collection Account and all
funds and other investments contained in such account to the Grantor Trust
Holder.
Section 2.02. Acceptance by Grantor Trustee; Authentication of Grantor
Trust Certificate. As of the Closing Date, the Grantor Trustee acknowledges the
conveyance to it of the Grantor Trust Estate, including all right, title and
interest of the Depositor in and to the Grantor Trust Estate, receipt of which
is hereby acknowledged by the Grantor Trustee and declares that the Grantor
Trustee holds and will hold the Home Loans, rights and agreements and other
property, including property yet to be received in the Grantor Trust Estate, in
trust, upon the trusts herein set forth, for the benefit of all present and
future Grantor Trust Holders. Concurrently with such receipt and assignment, the
Grantor Trustee has executed, authenticated and delivered to or upon the order
of the Depositor, the Grantor Trust Certificate duly authenticated by the
Grantor Trustee in the authorized percentage of 100% Percentage Interest and
evidencing the entire beneficial ownership of the Grantor Trust Estate.
Section 2.03. Ownership and Possession of Home Loan Files. Upon the
issuance of the Grantor Trust Certificate, with respect to the Home Loans, the
ownership of each Debt Instrument, the related Mortgage and the contents of the
related Servicer's Home Loan File and the Grantor Trustee's Home Loan File shall
be vested in the Grantor Trustee for the benefit of the Grantor Trust Holder,
although possession of the Servicer's Home Loan Files (other than items required
to be maintained in the Grantor Trustee's Home Loan Files) on behalf of and for
the benefit of the Grantor Trust Holder shall remain with the Servicer, and the
Custodian shall take possession of the applicable Grantor Trustee's Home Loan
Files as contemplated in Section 2.06 hereof.
Section 2.04. Books and Records; Sale or Security Interest. The sale of
each Home Loan shall be reflected on the balance sheets and other financial
statements of the Depositor, as a sale of assets by the Depositor, under GAAP.
Each of the Servicer and the Custodian shall be responsible for maintaining, and
shall maintain, a complete set of books and records for each Home Loan which
shall be clearly marked to reflect the ownership of each Home Loan by the
Grantor Trustee for the benefit of the Grantor Trust Holder.
It is the intention of the parties hereto that the transfers and
assignments contemplated by this Agreement shall constitute a sale of the Home
Loans and the other property specified in Section 2.01 hereof from the Depositor
to the Grantor Trustee and such property shall not be property of the Depositor.
If the assignment and transfer of the Home Loans and the other property
specified in Section 2.01 hereof to the Grantor Trustee pursuant to this
Agreement or the conveyance of the Home Loans or any of such other property to
the Grantor Trustee is held or deemed not to be a sale or is held or deemed to
be a pledge of security for a loan, the Depositor intends that the rights and
obligations of the parties shall be established pursuant to the terms of this
Agreement and that, in such event, (i) the Depositor shall be deemed to have
granted and does hereby grant to the Grantor Trustee a first priority security
interest in the entire right, title and interest of the Depositor in and to the
Grantor Trust Estate pursuant to Section 2.01 hereof and all proceeds thereof
and (ii) this Agreement shall constitute a security agreement under applicable
law. Within ten (10) days of the Closing Date, the Depositor shall cause to be
filed UCC-1 financing statements naming the Grantor Trustee as "secured party"
and describing the Home Loans being sold by the Depositor to the Grantor Trust
with the office of the Secretary of State of the state in which the Depositor is
located.
Section 2.05. Delivery of Home Loan Documents.
(a)With respect to each Home Loan, the Depositor and the Transferor shall,
on the Closing Date, deliver or caused to be delivered to the Custodian, as the
designated agent of the Grantor Trustee, each of the following documents
(collectively, the "Grantor Trustee's Home Loan File"):
(i) The original Debt Instrument, endorsed in blank or in the
following form: "Pay to the order of U.S. Bank National Association, as
Grantor Trustee under the Grantor Trust Agreement, dated as of June 1,
1998, Empire Funding Grantor Trust 1998-2, without recourse", with all
prior and intervening endorsements showing a complete chain of
endorsement from origination of the Home Loan to the Transferor;
(ii) If such Home Loan is secured by a Mortgage, the original
Mortgage with evidence of recording thereon (or, if the original
Mortgage has not been returned from the applicable public recording
office or is not otherwise available, a copy of the Mortgage certified
by a Responsible Officer of the Transferor or by the closing attorney
or by an officer of the title insurer or agent of the title insurer
which issued the related title insurance policy, if any, or commitment
therefor to be a true and complete copy of the original Mortgage
submitted for recording) and, if the Mortgage was executed pursuant to
a power of attorney, the original power of attorney with evidence of
recording thereon (or, if the original power of attorney has not been
returned from the applicable public recording office or is not
otherwise available, a copy of the power of attorney certified by a
Responsible Officer of the Transferor or by the closing attorney or by
an officer of the title insurer or agent of the title insurer which
issued the related title insurance policy, if any, or commitment
therefor, to be a true and complete copy of the original power of
attorney submitted for recording);
(iii) If such Home Loan is secured by a Mortgage, the original
executed Assignment of Mortgage, in recordable form. The Assignment of
Mortgage may be a blanket assignment, to the extent such assignment is
effective under applicable law, for Mortgages covering Mortgaged
Properties situated within the same county. If the Assignment of
Mortgage is in blanket form, an Assignment of Mortgage need not be
included in the individual Grantor Trustee's Home Loan File;
(iv) If such Home Loan is secured by a Mortgage, all original
intervening assignments of mortgage, with evidence of recording
thereon, showing a complete chain of assignment from origination of the
Home Loan to the Transferor (or, if any such assignment of mortgage has
not been returned from the applicable public recording office or is not
otherwise available, a copy of such assignment of mortgage certified by
a Responsible Officer of the Transferor or by the closing attorney or
by an officer of the title insurer or agent of the title insurer which
issued the related title insurance policy, if any, or commitment
therefor to be a true and complete copy of the original assignment
submitted for recording); provided that the chain of intervening
recorded assignments shall not be required to match the chain of
intervening endorsements of the Debt Instrument so long as the chain of
intervening recorded assignments, if applicable, evidences one or more
assignments of the Mortgage from the original mortgagee ultimately to
the person who has executed the Assignment of Mortgage; and
(v) The original, or a copy certified by the Transferor to be
a true and correct copy of the original, of each assumption,
modification, written assurance or substitution agreement, if any.
(b)With respect to each Home Loan, the Transferor and the Depositor shall,
on the Closing Date, deliver or caused to be delivered to the Servicer, as the
designated agent of the Grantor Trustee, each of the following documents
(collectively, the "Servicer's Home Loan Files"): (i) an original or copy of
truth-in-lending disclosure, (ii) an original or copy of the credit application,
(iii) an original or copy of the consumer credit report, (iv) an original or
copy of verification of employment and income, or verification of
self-employment income, (v) if the Home Loan is a Combination Loan, an original
or copy of contract of work or written description with cost estimates, if any,
(vi) if the Home Loan is a Combination Loan for which the Transferor prepares an
inspection report, an original or copy of the report of inspection of
improvements to the Property, (vii) to the extent not included in (clause (ii)
of this Section 2.04(b), an original or copy of a written verification (or a
notice of telephonic verification, with written verification to follow) that the
Obligor at the time of origination was not more than 30 days delinquent on any
Superior Lien on the Mortgaged Property, (viii) a copy of the HUD-1 or HUD 1-A
Closing Statement indicating the sale price, or an existing Uniform Residential
Appraisal Report, or a Drive-by Appraisal documented on FHLMC Form 704, or a tax
assessment, or a full Uniform Residential Appraisal Report prepared by a
national appraisal firm in accordance with the Transferor's underwriting
guidelines, and (ix) an original or a copy of a title search as of the time of
origination with respect to the Mortgaged Property in accordance with the
Transferor's underwriting guidelines.
(c)The Grantor Trustee shall cause the Custodian to take and maintain
continuous physical possession of the Grantor Trustee's Home Loan Files held by
it in the State of Minnesota, and in connection therewith, the Custodian shall
act solely as agent for the Grantor Trust Holder in accordance with the terms
hereof and not as agent for the Transferor or any other party.
(d)Within 60 days after the Closing Date, the Transferor, at its own
expense, shall record each Assignment of Mortgage (which may be a blanket
assignment if permitted by applicable law) in the appropriate real property or
other records; provided, however, that the Transferor need not record any such
Assignment of Mortgage with respect to which the related Mortgaged Property is
located in a Non-Recordation State. With respect to any Assignment of Mortgage
as to which the related recording information is unavailable within 60 days
following the Closing Date, such Assignment of Mortgage shall be submitted for
recording within 30 days after receipt of such information but in no event later
than one year after the Closing Date. The Custodian on behalf of the Grantor
Trustee, upon receipt from the Transferor shall be required to retain a copy of
each Assignment of Mortgage submitted for recording. In the event that any such
Assignment of Mortgage is lost or returned unrecorded because of a defect
therein, the Transferor shall promptly prepare a substitute Assignment of
Mortgage or cure such defect, as the case may be, and thereafter the Transferor
shall be required to submit each such Assignment of Mortgage for recording.
(e)All recordings required pursuant to this Section 2.05 shall be
accomplished by and at the expense of the ------------ Transferor.
Section 2.06. Acceptance by the Grantor Trustee of the Home Loans;
Certain Substitutions; Certification by the
Custodian.
(a)The Grantor Trustee agrees to cause the Custodian to execute and
deliver on the Closing Date an acknowledgment of receipt of the Grantor
Trustee's Home Loan File for each Home Loan held by it. The Grantor Trustee
declares that it will cause the Custodian to hold such documents and any
amendments, replacements or supplements thereto, as well as any other assets
included in the Grantor Trust Estate and delivered to the Custodian, in trust,
upon and subject to the conditions set forth herein. The Grantor Trustee agrees
to cause the Custodian to review each Grantor Trustee's Home Loan File held by
it within 45 days after the Closing Date (or, with respect to any Qualified
Substitute Home Loan, within 45 days after the conveyance of the related Home
Loan to the Grantor Trust) and to cause the Custodian to deliver to the
Transferor, the Depositor, the Grantor Trustee and the Servicer a certification
(the "Custodian's Initial Certification") to the effect that, as to each Home
Loan listed in the Home Loan Schedule (other than any Home Loan paid in full or
any Home Loan specifically identified as an exception to such certification),
(i) all documents required to be delivered to the Grantor Trustee pursuant to
this Agreement are in its possession or in the possession of the Custodian on
its behalf (other than as expressly permitted by Section 2.05 hereof), (ii) all
documents delivered by the Depositor and the Transferor to the Custodian
pursuant to Section 2.05 hereof have been reviewed by the Custodian and have not
been mutilated or damaged and appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Obligor) and relate to such Home Loan, (iii) based on the
examination of the Custodian on behalf of the Grantor Trustee, and only as to
the foregoing documents, the information set forth on the Home Loan Schedule
accurately reflects the information set forth in the Grantor Trustee's Home Loan
File and (iv) each Debt Instrument has been endorsed as provided in Section 2.04
hereof. Neither the Grantor Trustee nor the Custodian shall be under any duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable or
appropriate for the represented purpose or that they are other than what they
purport to be on their face or (ii) to determine whether any Grantor Trustee's
Home Loan File should include any of the documents specified in Section
2.05(a)(v) hereof.
(b)The Servicer's Home Loan File shall be held in the custody of the
Servicer for the benefit of, and as agent for, the Grantor Trust Holder and the
Grantor Trustee as the owner thereof for so long as this Agreement continues in
full force and effect. It is intended that, by the Servicer's agreement pursuant
to this Section 2.06(b), the Grantor Trustee shall be deemed to have possession
of the Servicer's Home Loan Files for purposes of Section 9-305 of the Uniform
Commercial Code of the state in which such documents or instruments are located.
The Servicer shall promptly report to the Grantor Trustee any failure by it to
hold the Servicer's Home Loan File as herein provided and shall promptly take
appropriate action to remedy any such failure. In acting as custodian of such
documents and instruments, the Servicer agrees not to assert any legal or
beneficial ownership interest in the Home Loans or such documents or
instruments. The Servicer agrees to indemnify the Grantor Trust Holder and the
Grantor Trustee for any and all liabilities, obligations, losses, damages,
payments, costs or expenses of any kind whatsoever which may be imposed on,
incurred by or asserted against the Grantor Trust Holder or the Grantor Trustee
as the result of any act or omission by the Servicer relating to the maintenance
and custody of such documents or instruments which have been delivered to the
Servicer; provided, however, that the Servicer will not be liable for any
portion of any such amount resulting from the negligence or misconduct of the
Grantor Trust Holder or the Grantor Trustee; and provided, further, that the
Servicer will not be liable for any portion of any such amount resulting from
the Servicer's compliance with any instructions or directions consistent with
this Agreement issued to the Servicer by the Grantor Trustee. The Grantor
Trustee shall have no duty to monitor or otherwise oversee the Servicer's
performance as custodian hereunder.
(c)The Custodian shall, for the benefit of the Grantor Trust Holder,
review each Grantor Trustee's Home Loan File within 60 days after the date it
delivered a Custodian's Initial Certification and deliver to the Transferor, the
Depositor, the Grantor Trustee and the Servicer an updated certification (a
"Custodian's Updated Certification"), setting forth those exceptions listed on
the Custodian's Initial Certification which continue to exist on the date of the
Custodian's Updated Certification. With respect to any Home Loans which are set
forth as exceptions in the Custodian's Updated Certification because recorded
assignments (except as permitted by Section 2.05(d) hereof) or original or
certified copies of Mortgages have not yet been delivered to the Custodian, the
Transferor shall cure such exceptions by delivering such missing documents to
the Custodian no later than 360 days after the Closing Date.
The Custodian agrees, for the benefit of the Grantor Trust Holder, to
review each Grantor Trustee's Home Loan File within 360 days after the Closing
Date, and to deliver to the Transferor, the Depositor, the Grantor Trustee and
the Servicer a final certification (a "Custodian's Final Certification"),
setting forth those exceptions listed on the Custodian's Updated Certification
which continue to exist on the date of such Custodian's Final Certification.
In performing any such review, the Custodian may conclusively rely on the
Transferor as to the purported genuineness of any such document and any
signature thereon. Neither the Grantor Trustee nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction or whether a blanket assignment is permitted in
any applicable jurisdiction. If a material defect in a document constituting
part of a Grantor Trustee's Home Loan File is discovered, then the Depositor and
Transferor shall comply with the cure, substitution and repurchase provisions of
Section 3.05 of the Sale and Servicing Agreement.
Section 2.07. Reserved.
Section 2.08. Release and Reconveyance of Home Loans.
(a) A Home Loan shall be released by the Grantor Trustee and reconveyed to
the Transferor at any time (i) after a repurchase or substitution pursuant to
Section 3.05 of the Sale and Servicing Agreement, (ii) after liquidation of the
Home Loan in accordance with Section 4.10 or 4.11 of the Sale and Servicing
Agreement and the deposit in the Collection Account of all proceeds recovered
therefrom (net of any costs and expenses relating thereto), or (iii) upon the
termination of a Home Loan (due to, among other causes, a prepayment in full of
the Home Loan and sale or other disposition of the related Mortgaged Property),
if the Transferor delivers to the Grantor Trustee a written request (A)
identifying the Home Loan and the related Mortgaged Property to be released and
reconveyed, (B) requesting the release and reconveyance thereof, (C) setting
forth the amount deposited in the Collection Account with respect thereto, and
(D) certifying that the amount deposited in the Collection Account (x) equals
the Substitution Adjustment related to the Qualified Substitute Home Loan and
the Deleted Home Loan released from this Grantor Trust Agreement pursuant to
item (i) above, or (y) equals the entire amount of net proceeds recovered and
received with respect to such Home Loan and the related Mortgaged Property in
the event of a release from this Grantor Trust Agreement pursuant to items (ii)
or (iii) above.
(b)The Grantor Trustee shall, if requested by the Servicer, temporarily
release or cause either Custodian to temporarily to release to the Servicer the
Grantor Trustee's Home Loan File held by such Custodian pursuant to the
provisions of Section 7.02 of the Sale and Servicing Agreement upon compliance
by the Servicer with the provisions thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Grantor Trustee and the Grantor
Trust Holder that as of the Closing Date:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has, and had at all relevant times, full power to own its property,
to carry on its business as currently conducted, to enter into and
perform its obligations under this Agreement and to create the Grantor
Trust pursuant to this Agreement;
(b) The execution and delivery of this Agreement by the
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Depositor is a party or which may be
applicable to the Depositor or any of its assets;
(c) The Depositor has the full power and authority to enter
into and consummate the transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Grantor Trustee and the Transferor, constitutes a valid, legal and
binding obligation of the Depositor, enforceable against it in
accordance with the terms hereof, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) The Depositor is not in violation of, and the execution
and delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations
of the Depositor or its properties or materially and adversely affect
the performance of its duties hereunder;
(e) There are no actions or proceedings against, or
investigations of, the Depositor currently pending with regard to which
the Depositor has received service of process and no action or
proceeding against, or investigation of, the Depositor is, to the
knowledge of the Depositor, threatened or otherwise pending before any
court, administrative agency or other tribunal that (A) if determined
adversely, would prohibit its entering into this Agreement or render
the Grantor Trust Certificate invalid, (B) seek to prevent the issuance
of the Grantor Trust Certificate or the consummation of any of the
transactions contemplated by this Agreement or (C) if determined
adversely, would prohibit or materially and adversely affect the
performance by the Depositor of its obligations under, or the validity
or enforceability of, this Agreement or the Grantor Trust Certificate;
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the Grantor Trust Certificate, or for the
consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations and orders, if any, that
have been obtained prior to the Closing Date;
(g) The Depositor is solvent, is able to pay its debts as they
become due and has capital sufficient to carry on its business and its
obligations hereunder; it will not be rendered insolvent by the
execution and delivery of this Agreement or its obligations hereunder;
no petition of bankruptcy (or similar insolvency proceeding) has been
filed by or against the Depositor prior to the date hereof;
(h) The Depositor did not convey the Home Loans to the Grantor
Trustee with any intent to hinder, delay or defraud any of its
creditors; the Depositor will not be rendered insolvent as a result of
the conveyance of the Home Loans to the Grantor Trustee;
(i) As of the Closing Date, the Depositor had good title to,
and was the sole owner of, each Home Loan free and clear of any lien
other than any such lien released simultaneously with the sale
contemplated herein, and, immediately upon each transfer and assignment
herein contemplated, the Depositor will have delivered to the Grantor
Trustee good title to, and the Grantor Trustee will be the sole owner
of, each Home Loan free and clear of any lien;
(j) The Depositor acquired title to each of the Home Loans in
good faith, without notice of any adverse claim;
(k) No Officers' Certificate, statement, report or other
document prepared by the Depositor and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading;
(l) The Depositor is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended; and
(m) The transfer, assignment and conveyance of the Debt
Instruments and the Mortgages by the Depositor pursuant to this
Agreement are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction.
ARTICLE IV
THE GRANTOR TRUST CERTIFICATE
Section 4.01. The Grantor Trust Certificate.
(a) The Grantor Trust Certificate shall be issued only in the minimum 100%
Percentage Interest of a Single Certificate and shall be substantially in the
form attached hereto as Exhibit A. On original issue the Grantor Trust
Certificate shall be executed and delivered by the Grantor Trustee to or upon
the order of the Depositor. The Grantor Trust Certificate shall be executed by
manual or facsimile signature on behalf of the Grantor Trustee by a Responsible
Officer thereof. The Grantor Trust Certificate bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Grantor Trustee shall bind the Grantor Trustee notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Grantor Trust Certificate. The Grantor Trust
Certificate shall not be entitled to any benefit under this Agreement, or be
valid for any purpose, unless manually countersigned by a Responsible Officer of
the Grantor Trustee, or unless there appears on the Grantor Trust Certificate a
certificate of authentication executed by the Authenticating Agent by manual
signature, and such countersignature or certificate upon the Grantor Trust
Certificate shall be conclusive evidence, and the only evidence, that the
Grantor Trust Certificate has been duly countersigned or authenticated and
delivered hereunder. The Grantor Trust Certificate shall be dated the date of
its countersignature or authentication.
Section 4.02. Registration, Transfer and Exchange of Grantor Trust
Certificate.
(a) The Grantor Trustee shall cause to be kept at one of the offices or
agencies to be maintained in accordance with the provisions of Section 4.05 a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of the Grantor
Trust Certificate and of transfers and exchanges of the Grantor Trust
Certificate as herein provided. The Grantor Trustee shall act as, or shall
appoint, a Certificate Registrar for the purpose of registering the Grantor
Trust Certificate and transfers and exchanges of the Grantor Trust Certificate
as herein provided.
Upon surrender for registration or transfer of the Grantor Trust
Certificate at any office or agency maintained for such purpose pursuant to
Section 4.05 (and subject to the provisions of this Section 4.02) the Grantor
Trustee shall execute, and shall date, countersign or authenticate (or cause the
Authenticating Agent to authenticate) and deliver, in the name of the designated
transferee or transferees, a new Grantor Trust Certificate of a like 100%
Percentage Interest.
At the option of the Grantor Trust Holder, the Grantor Trust Certificate
may be exchanged for a Grantor Trust Certificate of an authorized Percentage
Interest of a like 100% Percentage Interest upon surrender of the Grantor Trust
Certificate to be exchanged at any such office or agency. Whenever the Grantor
Trust Certificate is so surrendered for exchange, the Grantor Trustee shall
execute, and shall date, countersign or authenticate, as the case may be (or
cause the Authenticating Agent to authenticate) and deliver, the Grantor Trust
Certificate which such Grantor Trust Holder making the exchange is entitled to
receive. The Grantor Trust Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar or the Grantor
Trustee) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by, the
Grantor Trust Holder or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of the
Grantor Trust Certificate, but the Grantor Trustee or the Certificate Registrar
may require payment from the Grantor Trust Holder of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Grantor Trust Certificate.
The Grantor Trust Certificate surrendered for transfer and exchange shall
be canceled by the Certificate Registrar, the Grantor Trustee or the
Authenticating Agent in accordance with their standard procedures.
(b)No sale, transfer or other disposition by the Grantor Trust Holder of
the Grantor Trust Certificate (other than (i) the initial transfers of the
Grantor Trust Certificate by the Grantor Trustee to the Depositor, and by the
Depositor to the Issuer, (ii) the pledge of the Grantor Trust Certificate by the
Issuer to the Indenture Trustee pursuant to the terms of the Indenture) and
(iii) if applicable, any acquisition of the Grantor Trust Certificate by the
Indenture Trustee upon foreclosure on the Grantor Trust Certificate shall be
made unless the Grantor Trustee shall have received either (i) a representation
letter from the proposed purchaser or transferee of the Grantor Trust
Certificate substantially in the form of paragraph 3 of Exhibit B attached
hereto, to the effect that such proposed purchaser or transferee is not a Person
which is an employee benefit plan subject to the fiduciary responsibility
provisions of ERISA or a plan subject to Section 4975 of the Code, or a
governmental plan as defined in Section 3(32) of ERISA, subject to any federal,
state or local law which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan"), or a Person acting on
behalf of any such Plan or using the assets of such Plan to acquire such
Certificate or (ii) if such Grantor Trust Certificate is presented for
registration in the name of such a Plan subject to the fiduciary responsibility
provisions of ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such Plan, or a governmental plan as
defined in Section 3(32) of ERISA, subject to any federal, state or local law
which is, to a material extent, similar to the foregoing provisions of ERISA or
the Code, or any other Person who is using the assets of any such Plan to effect
such acquisition, an Opinion of Counsel in form and substance satisfactory to
the Grantor Trustee to the effect that such acquisition and holding of the
Grantor Trust Certificate will not constitute or result in a "prohibited
transaction" within the meaning of Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Grantor Trustee, the Certificate Registrar, the
Servicer or the Depositor to any obligation or liability under ERISA or Section
4975 of the Code. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of the Grantor Trust Certificate unless
the Certificate Registrar has received notification and acknowledgment from the
Grantor Trustee that they have received either the representation letter
described in clause (i) above or the Opinion of Counsel described in clause (ii)
above. The costs of any of the foregoing representation letters or Opinions of
Counsel shall not be borne by any of the Depositor, the Grantor Trustee, the
Certificate Registrar or the Grantor Trust. Any transfer, sale, pledge or other
disposition of the Grantor Trust Certificate that would constitute or result in
a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
or otherwise violate the provisions of this Section 3.02(b) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
(c)No offer, sale or other transfer of the Grantor Trust Certificate shall
be made unless such transfer is made pursuant to an effective registration
statement or otherwise in accordance with the requirements under the Act, and
effective registration or qualification under applicable state securities laws,
or is made in a transaction which does not require such registration or
qualification. If a transfer (other than (i) the initial transfers of the
Grantor Trust Certificate by the Grantor Trustee to the Depositor, and by the
Depositor to the Issuer, (ii) the pledge of the Grantor Trust Certificate by the
Issuer to the Indenture Trustee pursuant to the terms of the Indenture) is to be
made in reliance upon an exemption from the Act, and under the applicable state
securities laws, then either: (i) the Certificate Registrar shall require that
the transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B attached hereto, which Investment Representation Letter shall certify,
among other things, that the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or a
"qualified institutional buyer" as defined in Rule 144A under the Act, and the
Certificate Registrar may also require that the transferee deliver to the
Certificate Registrar an Opinion of Counsel if such transferee is not a
qualified institutional buyer within the meaning of Rule 144A under the Act; or
(ii) if the certifications described in the preceding clause (i) cannot be
provided (A) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Act, applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Certificate Registrar, the Depositor, the
Grantor Trust or the Grantor Trustee, and (B) the Certificate Registrar shall
require the transferor to execute a certification in form and substance
satisfactory to the Certificate Registrar setting forth the facts surrounding
such transfer. In each case, the Certificate Registrar will be entitled without
further investigation to rely upon such certification or Opinion of Counsel. The
Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Certificate Registrar, the Grantor Trustee and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws. None of the Depositor, the
Grantor Trustee or the Certificate Registrar is under any obligation to register
or qualify the Grantor Trust Certificate.
Unless the Grantor Trust Certificate has been registered under the Act,
the Grantor Trust Certificate shall bear a legend substantially to the following
effect:
THIS GRANTOR TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS GRANTOR TRUST
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION,
PROVIDED, HOWEVER, THAT THIS GRANTOR TRUST CERTIFICATE SHALL
BE PLEDGED BY THE HOLDER THEREOF TO THE INDENTURE TRUSTEE
PURSUANT TO THE TERMS OF THE INDENTURE.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE BY ITS ACCEPTANCE
HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
GRANTOR TRUST CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (B) FOR SO LONG AS THIS GRANTOR TRUST
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE GRANTOR
TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS GRANTOR TRUST CERTIFICATE, EXCEPT IN THE
CASE OF THE PLEDGE DESCRIBED ABOVE AND THE INITIAL TRANSFERS
OF THIS GRANTOR TRUST CERTIFICATE BY THE GRANTOR TRUSTEE TO
THE DEPOSITOR, AND BY THE DEPOSITOR TO THE ISSUER.
THE INITIAL INVESTOR IN THIS GRANTOR TRUST CERTIFICATE, AND
EACH SUBSEQUENT PURCHASER OF THIS GRANTOR TRUST CERTIFICATE,
BY PURCHASING THIS GRANTOR TRUST CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE GRANTOR TRUST
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT B TO THE GRANTOR TRUST AGREEMENT IF SUCH TRANSFEREE IS
A QUALIFIED INSTITUTIONAL BUYER OR AN ACCREDITED INSTITUTIONAL
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF
COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Grantor Trust
Certificate. If (i) the Grantor Trust Certificate is surrendered to the Grantor
Trustee or the Authenticating Agent as mutilated or the Grantor Trustee or the
Authenticating Agent receives evidence to its satisfaction of the destruction,
loss or theft of the Grantor Trust Certificate, and (ii) there is delivered to
the Grantor Trustee or Authenticating Agent such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of notice
to the Grantor Trustee or Authenticating Agent that the Grantor Trust
Certificate has been acquired by a bona fide purchaser, the Grantor Trustee
shall execute and countersign or authenticate (or cause the Authenticating Agent
to authenticate), as the case may be, and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Grantor Trust Certificate, a new
Grantor Trust Certificate of like 100% Percentage Interest. Upon the issuance of
a new Grantor Trust Certificate under this Section, the Grantor Trustee or the
Certificate Registrar may require from the Grantor Trust Holder the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expense (including the fees and expenses of
the Grantor Trustee or Authenticating Agent) in connection therewith. Unless a
bona fide purchaser of the original Grantor Trust Certificate presents such
Grantor Trust Certificate, any duplicate Grantor Trust Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Grantor Trust, as if originally issued, whether or not the
lost, stolen, or destroyed Grantor Trust Certificate shall be found at any time.
Section 4.04. Persons Deemed Owners. Prior to the due presentation of the
Grantor Trust Certificate for registration or transfer, the Depositor, the
Grantor Trustee, the Certificate Registrar and any agent of the Depositor, the
Grantor Trustee or the Certificate Registrar may treat the Person in whose name
the Grantor Trust Certificate is registered as the owner of the Grantor Trust
Certificate for the purpose of receiving distributions pursuant to Section 4.02
and for all other purposes whatsoever, and neither the Depositor, the Grantor
Trustee, the Certificate Registrar nor any agent of the Depositor, the Grantor
Trustee or the Certificate Registrar shall be affected by notice to the
contrary.
Section 4.05. Maintenance of Office or Agency. The Grantor Trustee will
maintain, at its expense, an office or agency where the Grantor Trust
Certificate may be surrendered for registration or transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of the
Grantor Trust Certificate and this Agreement may be served. The Grantor Trustee
initially designates the Corporate Trust Office and the principal corporate
trust office of the Authenticating Agent, if any, as its offices and agencies
for said purposes.
ARTICLE V
GRANTOR TRUST ACCOUNTS;
PAYMENTS TO GRANTOR TRUST HOLDER
Section 5.01. Collection Account. The Servicer, on behalf of the Grantor
Trustee shall establish and maintain with, and in the name of, the Indenture
Trustee, one or more collection accounts (the "Collection Account") for the
benefit of the Grantor Trust Holder pursuant to the terms of Section 5.01(a) of
the Sale and Servicing Agreement. The Servicer shall make deposits into the
Certificate Account in accordance with Section 5.01(b)(1) of the Sale and
Servicing Agreement. All amounts so deposited in the Collection Account shall be
held by the Indenture Trustee, on behalf of the Grantor Trustee, as part of the
Grantor Trust Estate as herein provided, subject to withdrawal as set forth in
Section 5.02 of this Agreement.
Section 5.02. Distributions from Collection Account.
(a) On the second Business Day prior to each Payment Date, so long as the
Issuer or its assignee is the Grantor Trust Holder, the Indenture Trustee, in
accordance with Section 5.01(b)(2) of the Sale and Servicing Agreement, shall
withdraw from the Collection Account the Available Collection Amount for such
Payment Date and deposit such amount into the Note Payment Account. Such
deposits into the Note Payment Account from the Collection Account shall be
deemed to constitute distributions to and on behalf of the Grantor Trust Holder.
(b)The Indenture Trustee may also make withdrawals from the Collection
Account pursuant to Section 5.01(b)(3) of the Sale and Servicing Agreement.
ARTICLE VI
CONCERNING THE GRANTOR TRUSTEE
Section 6.01. Duties of Grantor Trustee. The Grantor Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement.
The Grantor Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Grantor Trustee which are specifically required to be furnished pursuant
to any provision of this Agreement, shall examine them to determine whether they
are in the form required by this Agreement but the Grantor Trustee shall not be
required to determine, confirm or recalculate information contained in such
instruments.
No provision of this Agreement shall be construed to relieve the Grantor
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i)The duties and obligations of the Grantor Trustee shall be determined
solely by the express provisions of this Agreement, the Grantor Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Grantor Trustee and, in the
absence of bad faith on the part of the Grantor Trustee, the Grantor Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Grantor Trustee and conforming to the requirements of this Agreement;
(ii) The Grantor Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Grantor Trust Holder relating to the time,
method and place of conducting any proceeding for any remedy available to the
Grantor Trustee, or exercising any trust or power conferred upon the Grantor
Trustee, under this Agreement; and
(iii) The Grantor Trustee shall not be personally liable for any error of
judgment made in good faith by any Responsible Officer, unless it shall be
proved that the Grantor Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts.
None of the provisions contained in this Agreement shall require the
Grantor Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties as Grantor Trustee
hereunder or in the exercise of any of its rights or powers if there is
reasonable ground for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 6.02. Certain Matters Affecting the Grantor Trustee. Except as
otherwise provided in Section 6.01:
(i)The Grantor Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Grantor Trustee may consult with counsel, and any written advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such written advice or Opinion of Counsel;
(iii) The Grantor Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(iv) The Grantor Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; and
(v)All rights of action under this Agreement or under the Grantor Trust
Certificate, enforceable by the Grantor Trustee, may be enforced by it without
the possession of the Grantor Trust Certificate, or the production thereof at
the trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Grantor Trustee shall be brought in its name for
the benefit the Grantor Trust Holder, subject to the provisions of this
Agreement.
Section 6.03. Grantor Trustee not Required to Make Investigation. The
Grantor Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, or other paper or document (provided
the same appears regular on its face) or to take any remedial action, unless
directed in writing to do so by the Grantor Trust Holder; provided however, that
if the payment to the Grantor Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of any such investigation or the
taking of any such remedial action so directed by the Grantor Trust Holder is,
in the opinion of the Grantor Trustee, not reasonably assured to the Grantor
Trustee by the security afforded to it by the terms of this Agreement, the
Grantor Trustee may require reasonable agreement for the payment or
reimbursement of any such expense or security for any such liability as a
condition to so proceeding. The reasonable expense of every such investigation
so directed by the Grantor Trust Holder shall be paid by the Grantor Trust
Holder or, if paid by the Grantor Trustee, shall be repaid by the Grantor Trust
Holder upon demand.
Section 6.04. Grantor Trustee's Fees. The Grantor Trustee shall be
entitled to be paid the Grantor Trustee Fee pursuant to Section 5.01(c) of the
Sale and Servicing Agreement. Except as otherwise provided herein, the Grantor
Trustee will be responsible for all expenses it incurs in respect of any of its
duties or obligations hereunder and will not be entitled to any additional
amounts. The Grantor Trustee acknowledges and agrees that the Grantor Trustee
Fee constitutes reasonable compensation for its activities as Grantor Trustee
hereunder.
Section 6.05. Compliance with Code. The Grantor Trustee shall be
authorized to and shall prepare and file and furnish to the Grantor Trust
Holder, or cause to be prepared and filed and furnished, all federal, and if
applicable, state and local income tax and information returns or reports
relating to the Grantor Trust (including, without limitation, information with
respect to interest or discount income, gain or loss with respect to the Home
Loans and reinvestment income, gain or loss with respect to the Collection
Account) at the time and in the manner required by the Code. In connection with
the filing of any such returns, the Grantor Trustee shall have the right to
employ accountants and other personnel to assist in the preparation of such
filings.
Section 6.06. Eligibility Requirements for Grantor Trustee. The Grantor
Trustee hereunder shall at all times be a corporation having its principal
office in a state and city acceptable to the Depositor, organized and doing
business under the laws of such state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, or shall be a member of a bank
holding system, the aggregate combined capital and surplus of which is at least
$50,000,000, provided that the Grantor Trustee's separate capital and surplus
shall at all times be at least the amount specified in Section 310(a)(2) of the
Trust Indenture Act of 1939, and shall be subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Grantor Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Grantor
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.07.
Section 6.07. Resignation and Removal of Grantor Trustee. The Grantor
Trustee may resign and be discharged from the trust hereby created only by (i)
giving written notice of resignation to the Depositor and the Grantor Trust
Holder and (ii) arranging for a successor trustee to be appointed. The successor
trustee shall be acceptable to the Grantor Trust Holder, shall be eligible in
accordance with the provisions of Section 6.06, and shall be compensated solely
(A) pursuant to the provisions of this Agreement, and (B) if such arrangement is
not acceptable to such successor, pursuant to an arrangement between the
successor trustee and the resigning Grantor Trustee. Any such resignation of the
Grantor Trustee shall only be effective upon the appointment of a successor
trustee. Upon receiving such notice of resignation, the Grantor Trust Holder
shall promptly appoint a successor trustee by written instrument, in triplicate,
one copy of which instrument shall be delivered to the resigning Grantor
Trustee, one copy to the successor trustee and one copy to the Depositor. If no
successor trustee shall have been appointed and have accepted appointment within
60 days after the giving of such notice of resignation, the resigning Grantor
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.06 and shall fail to resign after written request
for the Grantor Trustee's resignation by the Grantor Trust Holder, or if at any
time the Grantor Trustee shall become incapable of acting, or an order for
relief shall have been entered in any bankruptcy or insolvency proceeding with
respect to the Grantor Trustee, or a receiver of the Grantor Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Grantor Trustee or of its property or affairs for the purpose of
rehabilitation, conversion or liquidation, or in order to change the status of
the Grantor Trust for state tax reasons, then the Grantor Trust Holder shall
remove the Grantor Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Grantor Trustee so removed, one copy to the successor trustee and one copy
to the Depositor.
The Grantor Trust Holder may at any time remove the Grantor Trustee and
appoint a successor trustee by written instrument or instruments, in triplicate,
signed by such holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, one complete set
of which shall be delivered to the Grantor Trustee so removed and one complete
set of which shall be delivered to the successor so appointed.
Any resignation or removal of the Grantor Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.08.
Section 6.08. Successor Grantor Trustee. Any successor trustee appointed
as provided in Section 6.07 shall execute, acknowledge and deliver to the
Grantor Trust Holder, the Depositor and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective, and such successor trustee,
without any further act, deed or reconveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee documents and statements relating
to the Grantor Trust Estate held by it hereunder, and the Depositor and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 6.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Grantor Trustee shall mail notice of the succession of such trustee
hereunder to the Grantor Trust Holder at its address as shown in the Certificate
Register. If the Grantor Trustee fails to mail such notice within ten days after
acceptance of the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Grantor Trustee.
Section 6.09. Merger or Consolidation of Grantor Trustee. Any Person into
which the Grantor Trustee may be merged or converted or with which it may be
consolidated, to which it may sell or transfer its corporate trust business and
assets as a whole or substantially as a whole or any Person resulting from any
merger, sale, transfer, conversion or consolidation to which the Grantor Trustee
shall be a party, or any Person succeeding to the business of the Grantor
Trustee, shall be the successor of the Grantor Trustee hereunder, provided that
(i) such Person shall be eligible under the provisions of Section 6.06, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, and (ii)
the Grantor Trustee shall deliver an opinion of counsel to the Depositor to the
effect that such merger, consolidation, sale or transfer will not subject the
Grantor Trust to federal, state or local tax.
Section 6.10. Authenticating Agent. The Grantor Trustee may appoint an
Authenticating Agent, which shall be authorized to act on behalf of the Grantor
Trustee in authenticating or countersigning the Grantor Trust Certificate.
Wherever reference is made in this Agreement to the authentication of the
Grantor Trust Certificate by the Grantor Trustee or the Grantor Trustee's
countersignature, such reference shall be deemed to include authentication on
behalf of the Grantor Trustee by the Authenticating Agent and a certification of
authentication executed on behalf of the Grantor Trustee by the Authenticating
Agent. The Authenticating Agent must be acceptable to the Depositor and must be
a corporation organized and doing business under the laws of the United States
of America or of any state, having a principal office and place of business in a
state and city acceptable to the Depositor, having a combined capital and
surplus of at least $15,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or state
authorities.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Grantor
Trustee or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30
day's advance written notice of resignation to the Grantor Trustee and the
Depositor. The Grantor Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice to the Depositor. Upon receiving a
notice of resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Grantor Trustee promptly shall appoint a
successor Authenticating Agent, which shall be acceptable to the Depositor, and
shall give written notice of such appointment to the Depositor, and shall mail
notice of such appointment to the Grantor Trust Holder. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 6.10.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Grantor Trustee. Any
compensation paid to the Authenticating Agent shall be at the expense of the
Grantor Trustee pursuant to Section 6.04.
ARTICLE VII
TERMINATION
Section 7.01. Termination. The respective obligations and responsibilities
of the Depositor and the Grantor Trustee created hereby and the Grantor Trust
created hereby shall terminate only upon the liquidation of all the Home Loans
or the Majority Residual Interest Holders' purchase of the all the Home Loans
pursuant to Section 11.02 of the Sale and Servicing Agreement; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States of America to the
Court of St. James's, living on the date thereof.
Section 7.02. Procedure Upon Termination of Grantor Trust
(a)Notice of any termination pursuant to the provisions of Section 7.01,
specifying the Payment Date upon which the final distribution shall be made,
shall be given promptly by the Grantor Trustee by first class mail to the
Grantor Trust Holder. Such notice shall specify (A) the Payment Date upon which
final distribution on the Grantor Trust Certificate will be made upon
presentation and surrender of the Grantor Trust Certificate at the Corporate
Trust Office, and (B) that the Record Date otherwise applicable to such Payment
Date is not applicable, distribution being made only upon presentation and
surrender of the Grantor Trust Certificate at the office or agency of the
Grantor Trustee therein specified. The Grantor Trustee shall give such notice to
the Depositor and the Certificate Registrar at the time such notice is given to
the Grantor Trust Holder.
(b)In the event that the Grantor Trust Holder does not surrender the
Grantor Trust Certificate for cancellation within three months after the time
specified in the above-mentioned written notice, the Grantor Trustee shall give
a second written notice to the Grantor Trust Holder to surrender the Grantor
Trust Certificate for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice the Grantor Trust
Certificate shall not have been surrendered for cancellation, the Grantor
Trustee may take appropriate steps to contact the Grantor Trust Holder
concerning surrender of the Grantor Trust Certificate, and the cost thereof
shall be paid out of the amounts distributable to such Grantor Trust Holder. If
within two years after the second notice the Grantor Trust Certificate shall not
have been surrendered for cancellation, the Grantor Trustee shall, subject to
applicable state law relating to escheatment, hold all amounts distributable to
the Grantor Trust Holder for the benefit of the Grantor Trust Holder. No
interest shall accrue on any amount held by the Grantor Trustee and not
distributed to a Grantor Trust Holder due to such Grantor Trust Holder's failure
to surrender its Grantor Trust Certificate for payment of the final distribution
therein in accordance with this Section.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 8.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 8.03. Amendment
(a)This Agreement may be amended from time to time by the Depositor, the
Transferor and the Grantor Trustee with the consent of the Grantor Trust Holder;
provided, however, any amendments relating to or affecting Article VII or this
Section 8.03, or any other provision of this Agreement relating to termination
of the Grantor Trust, amendment of this Agreement, shall also require the
consent of all of the holders of all of the Notes.
(b)Promptly after the execution of any such amendment, the Grantor Trustee
shall furnish written notification of the substance of such amendment to the
Grantor Trust Holder and the Depositor.
(c)It shall be necessary for the consent of the Grantor Trust Holder under
this Section 8.03 for the Holders to approve the particular form of any proposed
amendment. The manner of obtaining such consent and of evidencing the
authorization of the execution thereof by the Grantor Trust Holder shall be
subject to such reasonable rules and procedures as the Grantor Trustee may
prescribe.
Section 8.04. 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 WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 8.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received by
(a) in the case of Depositor, to PaineWebber Mortgage Acceptance Corporation IV,
1285 Avenue of the Americas, New York, New York 10019, Attention: John Fearey,
Esq., (b) in the case of the Grantor Trustee, to U.S. Bank National Association,
180 East Fifth Street, St. Paul, Minnesota 55101; Attention: Structured
Finance/Empire Funding 1998-2, and (c) in the case of the Transferor, to Empire
Funding Corp., 9737 Great Hills Trail, Austin, Texas 78759, Attention: Richard
N. Steed; or as to each party such other address as may hereafter be furnished
by such party to the other parties in writing. Any notice required or permitted
to be mailed to a Grantor Trust Holder shall be given by first class mail,
postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not a Grantor
Trust Holder receives such notice.
Section 8.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Grantor Trust
Certificate or the rights of the Grantor Trust Holder thereof.
Section 8.07. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
Section 8.08. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 8.09. Benefits of Agreement. Nothing in this Agreement or in the
Grantor Trust Certificate, express or implied, shall give to any Person, other
than the parties to this Agreement and their successors hereunder and the
Grantor Trust Holder, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement; provided, however, that notwithstanding the
foregoing, the holders of the Notes are and shall be intended third party
beneficiaries of this Agreement with respect to Section 8.03 hereof.
Section 8.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Transferor and the Grantor Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first written above.
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV,
as Depositor
By:---------------------------------------------
Name:
Title:
EMPIRE FUNDING CORP., as Transferor
By:---------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Grantor Trustee
By:---------------------------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of June, 1998, before me, a notary public in and for the
State of New York, personally appeared _______________, known to me who, being
by me duly sworn, did depose and say that he/she resides at ___________________;
that he/she is a __________________________ of PaineWebber Mortgage Acceptance
Corporation IV, one of the parties that executed the foregoing instrument and
that she is authorized by PaineWebber Mortgage Acceptance Corporation IV to sign
his/her name thereto.
---------------------------
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of June, 1998, before me, a notary public in and for the
State of _____________, personally appeared _____________, known to me who,
being by me duly sworn, did depose and say that he resides at
___________________; that he is a __________________ of Empire Funding Corp.,
one of the parties that executed the foregoing instrument and that he is
authorized by Empire Funding Corp. to sign his name thereto.
---------------------------
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of June, 1998, before me, a notary public in and for the
State of _________, personally appeared _____________, known to me who, being by
me duly sworn, did depose and say that he resides at ___________________; that
he is a __________________ of U.S. Bank National Association, one of the parties
that executed the foregoing instrument and that he is authorized by U.S. Bank
National Association to sign his name thereto.
---------------------------
Notary Public
[NOTARIAL SEAL]
<PAGE>
EXHIBIT A
FORM OF GRANTOR TRUST CERTIFICATE
THIS GRANTOR TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS GRANTOR TRUST CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, PROVIDED, HOWEVER, THAT THIS GRANTOR TRUST CERTIFICATE
SHALL BE PLEDGED BY THE HOLDER THEREOF TO THE INDENTURE TRUSTEE PURSUANT TO THE
TERMS OF THE INDENTURE.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH GRANTOR TRUST CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (B) FOR SO LONG AS THIS GRANTOR TRUST CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE GRANTOR TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS GRANTOR TRUST CERTIFICATE, EXCEPT IN THE CASE
OF THE PLEDGE DESCRIBED ABOVE AND THE INITIAL TRANSFERS OF THIS GRANTOR TRUST
CERTIFICATE BY THE GRANTOR TRUSTEE TO THE DEPOSITOR, AND BY THE DEPOSITOR TO THE
ISSUER.
THE INITIAL INVESTOR IN THIS GRANTOR TRUST CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS GRANTOR TRUST CERTIFICATE, BY PURCHASING THIS GRANTOR TRUST
CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH
CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE GRANTOR TRUST AGREEMENT. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF EXHIBIT B TO THE GRANTOR TRUST AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN ACCREDITED INSTITUTIONAL
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS GRANTOR TRUST CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED UNLESS THE
GRANTOR TRUSTEE SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH GRANTOR TRUST CERTIFICATE IN FORM AND
SUBSTANCE SATISFACTORY TO THE GRANTOR TRUSTEE AND THE DEPOSITOR, TO THE EFFECT
THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT A PERSON WHICH IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN AS DEFINED IN SECTION 3(32)
OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY,
A "PLAN"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE SUCH GRANTOR TRUST CERTIFICATE OR (ii) IF SUCH GRANTOR
TRUST CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF SUCH A PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR SECTION 4975 OF
THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE
OF ANY SUCH PLAN, OR A GOVERNMENTAL PLAN AS DEFINED IN SECTION 3(32) OF ERISA,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY OTHER PERSON
WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION, AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE GRANTOR TRUSTEE TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH GRANTOR TRUST CERTIFICATE
(WITHOUT REGARD TO THE IDENTITY OR NATURE OF THE OTHER HOLDERS OF SUCH GRANTOR
TRUST CERTIFICATE) WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL
NOT SUBJECT THE GRANTOR TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY UNDER ERISA OR SECTION 4975 OF THE
CODE.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE WILL BE TREATED AS THE OWNER OF A
PRO RATA UNDIVIDED BENEFICIAL INTEREST IN THE HOME LOANS. EACH TRANSFEREE OF
THIS GRANTOR TRUST CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS GRANTOR TRUST CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY, AS SET FORTH IN SECTION 4.02 OF THE GRANTOR TRUST AGREEMENT.
<PAGE>
EMPIRE FUNDING GRANTOR TRUST 1998-2
evidencing an interest in a trust
the assets of which consist primarily
of the Home Loans
Certificate No. __
Percentage Interest evidenced
by this Grantor Trust Certificate: 100%
First Payment Date: July 25, 1998
THIS CERTIFIES THAT U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee
is the registered owner of the Percentage Interest evidenced by this Grantor
Trust Certificate in monthly distributions to the Grantor Trust Holder with
respect to the Grantor Trust consisting of a trust the assets of which consist
primarily of the Home Loans. The Grantor Trust was created pursuant to a Trust
Agreement dated as of June 1, 1998 ("Agreement") among PaineWebber Mortgage
Acceptance Corporation IV (the "Depositor"), (the "Transferor"), and U.S. Bank
National Association, as Grantor Trustee (the "Grantor Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Grantor Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the holder of this Grantor Trust Certificate by
virtue of the acceptance hereof assents and by which such holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on this
Grantor Trust Certificate to the Person in whose name this Grantor Trust
Certificate is registered at the close of business on the last day of the
calendar month preceding the month of such distribution, or if such day is not a
Business Day, the Business Day immediately preceding such day, in an amount
equal to the product of the Percentage Interest evidenced by this Grantor Trust
Certificate and the amount required to be distributed to the Grantor Trust
Holder on such Payment Date pursuant to Section 5.02 of the Agreement.
Distributions on this Grantor Trust Certificate will be made by the
Grantor Trustee by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register unless such
Person notifies the Grantor Trustee in writing at least five Business Days prior
to a Payment Date that such payments are to be made by wire transfer (at the
expense of the Grantor Trustee) of immediately available funds to the account
specified by such person. Notwithstanding the above, the final distribution on
this Grantor Trust Certificate will be made after due notice of the pendency of
such distribution and only upon presentation and surrender of this Grantor Trust
Certificate at the office or agency specified by the Trustee for that purpose in
the notice of final distribution.
No offer, sale, or other transfer of the Grantor Trust Certificate (other
than the initial transfers of the Grantor Trust Certificate by the Grantor
Trustee to the Depositor, and by the Depositor to the Issuer) shall be made
unless such transfer is made pursuant to an effective registration statement or
otherwise in accordance with the requirements under the Act, and effective
registration or qualification under applicable state securities laws, or is made
in a transaction which does not require such registration or qualification. If a
transfer (other than the initial transfer by the Grantor Trustee to the
Depositor or one by the Depositor or an affiliate thereof) is to be made in
reliance upon an exemption from the Act, and under the applicable state
securities laws, then either: (i) the Certificate Registrar shall require that
the transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B to the Grantor Trust Agreement, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act or a "qualified institutional buyer" as defined in Rule 144A under the Act,
and the Certificate Registrar may also require that the transferee deliver to
the Certificate Registrar an Opinion of Counsel if such transferee is not a
qualified institutional buyer within the meaning of Rule 144A under the Act; or
(ii) if the certifications described in the preceding clause (i) cannot be
provided (A) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Act, applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Certificate Registrar, the Depositor, the
Grantor Trust or the Grantor Trustee, and (B) the Certificate Registrar shall
require the transferor to execute a certification in form and substance
satisfactory to the Certificate Registrar setting forth the facts surrounding
such transfer. In each case, the Certificate Registrar will be entitled without
further investigation to rely upon such certification or Opinion of Counsel. A
Grantor Trust Holder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Certificate Registrar, the Grantor Trustee and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws. The Grantor Trust
Holder shall pledge the Grantor Trust Certificate to the Indenture Trustee
pursuant to the terms of the Indenture.
The Agreement does not permit the amendment of the Agreement and the
modification of the rights and obligations of the Depositor, the Grantor Trustee
and the Transferor and the rights of the Grantor Trust Holder under the
Agreement without the consent of Grantor Trust Holder; provided, however, any
amendments relating to or affecting Article VII or Section 8.03, or any other
provision of the Agreement relating to termination of the Grantor Trust or
amendment of the Agreement, shall require the consent of all of the holders of
all of the Notes.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Grantor Trust Certificate is registrable in the
Certificate Register upon surrender of this Grantor Trust Certificate for
registration of transfer at the office or agency appointed by the Grantor
Trustee, duly endorsed by, or accompanied by an assignment in the form below or
other written instrument of transfer in form satisfactory to the Grantor Trustee
and the Certificate Registrar, duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon a new Grantor Trust
Certificate of authorized 100% Percentage Interest will be issued to the
designated transferee.
The Grantor Trust Certificate is issuable only as a registered Grantor
Trust Certificate without coupons in the Percentage Interest specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Grantor Trust Certificate is exchangeable for a new
Grantor Trust Certificate of authorized 100% Percentage Interest, as requested
by the Grantor Trust Holder surrendering the same.
The Grantor Trust Holder may at any time remove the Grantor Trustee with
or without cause, and appoint a successor trustee. If such removal is without
cause, the Grantor Trust Holder shall be responsible for making satisfactory
arrangements for compensation of the successor trustee.
No service charge will be made for any such registration of transfer or
exchange, but the Grantor Trustee or the Certificate Registrar may require
payment from the Grantor Trust Holder of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The Depositor, the Grantor Trustee and the Certificate Registrar, and any
agent of the Depositor, the Grantor Trustee or the Certificate Registrar, may
treat the Person in whose name this Grantor Trust Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Grantor
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement in respect of the Grantor Trust
Certificate and the Grantor Trust created thereby shall terminate only upon the
liquidation of all the Home Loans or the Majority Residual Interest Holders'
purchase of all the Home Loans pursuant to Section 11.02 of the Sale and
Servicing Agreement; provided, however, that the Trust Fund will in no event
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the Court of St. James, living on the date of the Agreement.
Unless this Grantor Trust Certificate has been countersigned by an
authorized officer of the Grantor Trustee, by manual signature, this Grantor
Trust Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Grantor Trustee has caused this Grantor Trust
Certificate to be duly executed as of the date set forth below.
Dated:
U.S. BANK NATIONAL ASSOCIATION,
as Grantor Trustee
By: _____________________________________
Name:
Title:
Countersigned:
U.S. BANK NATIONAL ASSOCIATION,
as Grantor Trustee
By: ____________________________
Name:
Title:
<PAGE>
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Grantor Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Grantor Trust.
I (We) further direct the Certificate Registrar to issue a new Grantor
Trust Certificate of a like Percentage Interest, to the above named assignee and
deliver such Grantor Trust Certificate to the following address:
- ----------------------------------------------------------------
Social Security or other Identifying Number of Assignee:
- -----------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
<PAGE>
[DISTRIBUTION INSTRUCTIONS]
The assignee should include the following for purposes of distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to __________________________________________ for
the account of ______________________________________________ account number
____________, or, if mailed by check, to ________________________________.
Applicable statements should be mailed to _____________________
_______________________________________________________________________________.
This information is provided by ______________________, the assignee named
above, or ___________________________________, as its agent.
<PAGE>
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
U.S. Bank National Association
as Grantor Trustee and Certificate Registrar
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Structured Finance/Empire Funding 1998-2
Re: Transfer of Empire Funding Grantor Trust 1998-2,
Grantor Trust Certificate
-----------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 4.02 of the Trust Agreement
dated as of June 1, 1998 (the "Trust Agreement"), by and among PaineWebber
Mortgage Acceptance Corporation IV, as Depositor, Empire Funding Corp., as
Transferor, and U.S. Bank National Association, as Grantor Trustee, on behalf of
the holders of Empire Funding Grantor Trust 1998-2 Grantor Trust Certificate
(the "Grantor Trust Certificate"), in connection with the transfer by
_________________ (the "Seller") to the undersigned (the "Purchaser") of a 100%
Percentage Interest in the Grantor Trust Certificate. Terms used but not defined
herein shall have the meanings ascribed thereto in the Trust Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
[[For Institutional Accredited Investors] 1. The Purchaser is an
"institutional accredited investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment in the Grantor Trust Certificate, and the Purchaser and
any accounts for which it is acting are each able to bear the economic risk of
the Purchaser's or such account's investment. The Purchaser is acquiring the
Grantor Trust Certificate purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor") as to each of
which the Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Grantor Trustee for any costs incurred by it in
connection with this transfer.]
[[For Qualified Institutional Buyers only] 1. The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
The Purchaser is aware that the transfer is being made in reliance on Rule 144A,
and the Purchaser has had the opportunity to obtain the information required to
be provided pursuant to paragraph (d)(4)(i) of Rule 144A.]
2. The Purchaser's intention is to acquire the Grantor Trust Certificate
(a) for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, and not in any
event with the view to, or for resale in connection with, any distribution
thereof, or (ii) to "institutional accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Securities Act, pursuant to any other exemption from the registration
requirements of the Securities Act, subject in the case of this clause (ii) to
(a) the receipt by the Certificate Registrar of a letter substantially in the
form hereof, (b) the receipt by the Certificate Registrar of an opinion of
counsel acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act, (c) the receipt by
the Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws, and (d) a written undertaking to
reimburse the Grantor Trust for any costs incurred by it in connection with the
proposed transfer. The Purchaser understands that the Grantor Trust Certificate
(and any subsequent Grantor Trust Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Grantor Trust Certificate (and any
Grantor Trust Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the Securities Act or the securities laws of any
State or any other jurisdiction, and that the Grantor Trust Certificate cannot
be resold unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
4. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Trust Agreement in its capacity as an owner of the Grantor Trust
Certificate (the "Grantor Trust Holder"), in all respects as if it were a
signatory thereto. This undertaking is made for the benefit of the Grantor
Trust, the Grantor Trustee, the Certificate Registrar and all Grantor Trust
Holders present and future.
5. The Purchaser will not sell or otherwise transfer any portion of the
Grantor Trust Certificate, except in compliance with Section 4.02 of the Trust
Agreement.
[Please make all payments due on the Grantor Trust Certificate:*
_____ (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefore:
Account number _________ Institution __________________
_____ (b) by mailing a check or draft to the following address:
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Very truly yours,
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[The Purchaser]
By: -------------------------------
Name:
Title
Dated: ____ __, ____
Receipt hereby acknowledged:
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* Please select (a) or (b).
