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EXHIBIT 10.2
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DEPOSIT AND SALE AGREEMENT
between
FUND AMERICA INVESTORS CORPORATION II, DEPOSITOR
and
FAIC II ISSUER TRUST 2000-1, ISSUER
dated as of January 20, 2000
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................2
Section 1.01. Definitions...............................................................................2
ARTICLE II SALE; CONSIDERATION...................................................................................4
Section 2.01. Sale......................................................................................4
Section 2.02. Consideration.............................................................................5
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS............................................................5
Section 3.01. Representations, Warranties and Covenants of the Depositor................................5
Section 3.02. Assignment of Representations and Warranties and Covenants of the
Depositor Regarding the Agency Securities............................................7
Section 3.03. Representations, Warranties and Covenants of the Issuer...................................8
ARTICLE
IV................................................................................................................9
Section 4.01. Optional Certificate Redemption...........................................................9
Section 4.02. Optional Note Redemption..................................................................9
ARTICLE V MISCELLANEOUS PROVISIONS..............................................................................10
Section 5.01. Amendment................................................................................10
Section 5.02. Governing Law; Submission to Jurisdiction................................................10
Section 5.03. Waiver of Jury Trial.....................................................................10
Section 5.04. Notices..................................................................................10
Section 5.05. Severability of Provisions...............................................................11
Section 5.06. Assignment...............................................................................11
Section 5.07. Further Assurances.......................................................................11
Section 5.08. No Waiver; Cumulative Remedies...........................................................11
Section 5.09. Counterparts.............................................................................12
Section 5.10. Binding Effect...........................................................................12
Section 5.11. Merger and Integration...................................................................12
Section 5.12. Headings.................................................................................12
SCHEDULE I: AGENCY SECURITIES
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DEPOSIT AND SALE AGREEMENT (this "Agreement") dated as of
January 20, 2000, by and between FUND AMERICA INVESTORS CORPORATION II, a
Delaware corporation (the "Depositor"), and FAIC II ISSUER TRUST 2000-1, a
Delaware statutory business trust (the "Issuer").
W I T N E S S E T H
WHEREAS, pursuant to a Purchase Agreement dated as of January
20, 2000 (the "Purchase Agreement") between ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, a Delaware corporation (the "Seller") and the Depositor, the
Seller sold, assigned and transferred certain securities guaranteed by either
▇▇▇▇▇▇ Mae or the Federal Home Loan Mortgage Corporation ("▇▇▇▇▇▇▇ Mac") which
securities are identified on Schedule I attached hereto (the "Agency
Securities"), to the Depositor subject to the terms specified in the Purchase
Agreement;
WHEREAS, the Issuer was formed as a Delaware statutory
business trust on January 19, 2000 pursuant to an Agreement of Trust, dated as
of January 19, 2000, as amended and restated by an Amended and Restated
Agreement of Trust dated as of January 20, 2000 (the "Issuer Trust Agreement")
among the Depositor, Christiana Bank & Trust Company, not in its individual
capacity, but solely as trustee of the Issuer (in such capacity, the "Issuer
Trustee"), and State Street Bank and Trust Company, as the authenticating agent,
registrar and paying agent thereunder with respect to the Class R Certificates
issued thereunder (in such capacity, the "Issuer Certificate Agent");
WHEREAS, the Depositor desires to contribute and assign to the
Issuer (i) all of its right, title and interest to and under the Agency
Securities and (ii) all of its rights under the Purchase Agreement (together,
the "Contributed Assets") for the cash and other consideration, and upon the
terms and conditions, set forth herein (the "Sale");
WHEREAS, pursuant to the terms of the Indenture dated as of
January 20, 2000 (the "Indenture"), between the Issuer and State Street Bank and
Trust Company, as the trustee thereunder (in such capacity, the "Note Trustee"),
the Issuer will issue U.S. $1,986,400 aggregate principal balance of variable
rate FAIC II Issuer Trust 2000-1, Class F Notes, due December 1, 2029 (the
"Class F Notes"), and U.S. $764,000 aggregate principal balance of variable
rate, FAIC II Issuer Trust 2000-1, Class S Notes, due December 1, 2029 (the
"Class S Notes" and, together with the Class F Notes, the "Notes"), secured by a
pledge of certain assets of the Issuer, including the Contributed Assets;
WHEREAS, pursuant to the terms of the Issuer Trust Agreement,
the Issuer will issue U.S. $465,600 aggregate principal amount of FAIC II Issuer
Trust 2000-1, Class R Certificates, due December 1, 2029 (the "Class R
Certificates"), representing 100% of the equity interest of the Issuer;
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WHEREAS, the Issuer desires to grant to the Depositor the
right to direct the Issuer to redeem the Class R Certificates and in connection
therewith certain rights regarding redemption of the Notes; and
WHEREAS, the Depositor and the Issuer are entering into this
Agreement with the intention that the transactions contemplated hereby will be
executed;
NOW, THEREFORE, it is hereby agreed by and between the
Depositor and Issuer as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01.00 DEFINITIONS. For all purposes of this
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms shall have the following meanings and such
meanings shall be equally applicable to the singular and plural forms of such
terms. Capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture or, if not defined therein, in the
Issuer Trust Agreement. All other capitalized terms used herein shall have the
meanings specified herein.
"Agency Security" means each of the securities specified in
Schedule I hereto.
"Agreement" means this Deposit and Sale Agreement as it may
from time to time be amended, supplemented or otherwise modified in accordance
with the terms hereof.
"Class F Notes" has the meaning assigned to it in the fourth
WHEREAS clause hereof.
"Class R Certificates" has the meaning assigned to it in the
fifth WHEREAS clause hereof.
"Class S Notes" has the meaning assigned to it in the fourth
WHEREAS clause hereof.
"Closing Date" means January 20, 2000.
"Contributed Assets" has the meaning assigned to such term in
the third WHEREAS clause hereto.
"Cut-off Date" means January 26, 2000.
"Depositor" means Fund America Investors Corporation II, a
corporation formed under the laws of the State of Delaware.
"Indenture" means the Indenture dated as of January 20, 2000
between the Issuer and State Street, as trustee thereunder.
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"Initial Certificate Balance" means, with respect to the Class
R Certificates, U.S. $465,600.
"Issuer" means FAIC II Issuer Trust 2000-1, a statutory
business trust formed under the laws of the State of Delaware.
"Issuer Certificate Agent" has the meaning assigned to such
term in the second WHEREAS clause hereto.
"Issuer Trust Agreement" has the meaning assigned to such term
in the second WHEREAS clause hereto.
"Issuer Trustee" has the meaning assigned to such term in the
second WHEREAS clause hereto.
"Lien" means, as applied to property or assets, real or
personal, tangible or intangible, any claim, pledge, mortgage, lien, charge,
security interest or encumbrance of any kind thereon (including, without
limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any lease in the nature thereof or the interest
of the lessor under any capitalized lease and the filing of or agreement to give
any financing statement or similar document to perfect any security interest
under the Uniform Commercial Code of any jurisdiction or any other similar
filing to perfect any security interest).
"Monthly Payment Date" means the first business day of each
month, commencing March 1, 2000.
"Notes" has the meaning assigned to it in the fourth WHEREAS
clause hereof.
"Note Trustee" means State Street Bank and Trust Company, in
its capacity as trustee under the Indenture.
"Optional Certificate Redemption Amount" has the meaning
assigned to such term in Section 4.01 of this Agreement.
"Optional Note Redemption Amount" has the meaning assigned to
such term in Section 4.02 of this Agreement.
"Outstanding Certificate Balance" means, with respect to the
Class R Certificates, on any date, an amount equal to (i) the Initial
Certificate Balance thereof minus (ii) the aggregate amount of all distributions
of principal made to the Holders thereof. The Outstanding Certificate Balance
shall be calculated as of the close of business, in the case of any Monthly
Payment Date other than the initial Monthly Payment Date, on the preceding
Monthly Payment Date after giving effect to all distributions of principal to
the applicable Certificateholders on each preceding Monthly Payment Date
(including such preceding Monthly Payment Date); provided that on the Closing
Date the Outstanding Certificate Balance thereof shall be equal to the Initial
Certificate Balance thereof.
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"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Purchase Agreement" means the Purchase Agreement dated as of
January 20, 2000, between the Seller and the Depositor.
"REMIC" means a real estate mortgage investment conduit, as
defined in Section 860D of the Internal Revenue Code of 1986, as amended.
"Sale" has the meaning assigned to such term in the third
WHEREAS clause hereto.
"Seller" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, a Delaware corporation.
"State Street" means State Street Bank and Trust Company, a
banking corporation incorporated in the Commonwealth of Massachusetts.
"Subsidiary" means with respect to any Person, any corporation
or other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other individuals
performing similar functions, are at the time directly or indirectly owned by
such Person.
"Transaction Documents" means the Indenture, the Notes, the
Issuer Trust Agreement, the Class R Certificates, this Deposit Agreement and the
Purchase Agreement.
"Underlying Issuing Documents" means the documents identified
in Schedule I hereto, which relate to the issuance of the Agency Securities.
ARTICLE II
SALE; CONSIDERATION
SECTION 2.01.00 SALE.
(a) Upon the terms and subject to the conditions set
forth herein, the Depositor hereby assigns, transfers and conveys to the Issuer
all of its right, title, interest in, to and under the Contributed Assets, and
all payments made thereon on and after the Cut-off Date, and the Issuer hereby
accepts and assumes from the Depositor, all of the Depositor's right, title and
interest in, to and under the Contributed Assets, free and clear of all Liens.
(b) It is the express intent of the Depositor and the
Issuer that the Sale be construed as an absolute conveyance, without recourse,
of the Contributed Assets by the Depositor to the Issuer. It is, further, not
the intention of the Depositor or the Issuer that the Sale be deemed a grant of
a security interest in the Contributed Assets by the Depositor to the Issuer to
secure a debt or other obligation of the Depositor. However, in the event that,
notwithstanding
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the intent of the parties, the Contributed Assets are held to
continue to be property of the Depositor, then the Sale provided for in this
Agreement shall be deemed to be and hereby is a grant by the Depositor to the
Issuer of a security interest in and to all of the Depositor's right, title and
interest in, to and under the Contributed Assets. The Depositor and the Issuer
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Contributed Assets, such security interest would be deemed to be
a perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement.
SECTION 2.02.00 CONSIDERATION. As consideration for the Sale,
the Issuer shall (i) remit to the Depositor all of the net proceeds of the sale
of the Notes and the Class R Certificates and (ii) grant to the Depositor the
right to direct the Issuer to redeem the Class R Certificates (and, under
certain circumstances specified in the Issuer Trust Agreement, the Notes), in
whole, in accordance with Article IV hereof and the Issuer Trust Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01.00 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEPOSITOR.
(a) The Depositor hereby represents, warrants and
covenants, as of the Closing Date, that:
(i) Binding Obligation. This Agreement has been duly
authorized, and when executed and delivered by the Depositor, assuming
the due authorization and delivery by each party hereto, shall
constitute the legal, valid, enforceable and binding obligation of the
Depositor, enforceable against it in accordance with its respective
terms, except as subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or in equity).
(ii) Existence and Power. The Depositor is a
corporation duly formed, validly existing and in good standing under
the laws of the State of Delaware and has all powers and all
governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and as contemplated by this
Agreement.
(iii) No Consents. All consents, approvals,
authorizations or other orders of all regulatory authorities required
for or in connection with the execution, delivery and performance of
this Agreement have been obtained to the extent necessary and are in
full force and effect and not contingent upon the fulfillment of any
condition.
(iv) Governmental Authorization; No Contravention.
The execution, delivery and performance by the Depositor of this
Agreement are within the Depositor's
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powers, have been duly authorized by all necessary action, require no
action by or in respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation of the State of
Delaware or the State of New York or of the Articles of Incorporation
or Bylaws of the Depositor or of any agreement or other instrument
binding upon the Depositor or result in the creation or imposition of
any Lien on any asset of the Depositor.
(v) Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Depositor
threatened against or affecting, the Depositor before any court or
arbitrator or any governmental body, agency or official.
(vi) Not an Investment Company. The Depositor is not,
and is not directly or indirectly controlled by or acting on behalf of
any Person which is, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(vii) Taxes Upon Execution of this Agreement. Neither
the execution and delivery of this Agreement, nor the enforcement
hereof, is subject to any tax, duty, fee or other charge, including,
without limitation, any registration or transfer tax, stamp duty,
mortgage recordation tax or similar levy, other than those that have
been paid on or prior to the Closing Date.
(viii) No Conflict. The consummation of any of the
transactions contemplated herein will not conflict with or result in
the breach of any material term or provision of any agreement to which
the Depositor is a party or any of the Underlying Issuing Documents,
and the Depositor is not in breach or violation of or in default (nor,
to the best of the Depositor's knowledge, has an event occurred which
with notice or lapse of time or both would constitute a default) under
the terms of (a) any agreement to which the Depositor is a party, (b)
any of the Underlying Issuing Documents or (c) any law, decree, order,
rule or regulation applicable to the Depositor of any court or
supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over its properties, the
default in or the breach or violation of which would have a material
adverse effect on the Depositor or the ability of the Depositor to
perform its obligations under this Agreement.
(ix) Valid Business Reason. The Depositor has a valid
business reason for contributing or otherwise effecting an absolute
transfer of the Contributed Assets. The transfer of the Contributed
Assets constitutes a practical and reasonable course of action designed
to improve the Depositor's financial condition without impairing the
rights of the Depositor's creditors.
(x) Conduct of Business. The Depositor will conduct
its business in an independent manner so that its assets should not be
substantively consolidated with the assets, or deemed to be part of the
bankruptcy or receivership estate, of any other entity by a court
adjudicating the bankruptcy, receivership or insolvency of such other
entity.
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(xi) Absolute Transfer. Pursuant to the Sale, the
Depositor intends to relinquish all rights to possess, control and
monitor the Contributed Assets. The Depositor will not take any action
inconsistent with the Issuer's ownership of the Contributed Assets.
Upon the inquiry of a third party (including a potential purchaser of
the Contributed Assets), the Depositor will promptly state that it has
contributed or otherwise made an absolute transfer of the Contributed
Assets to the Issuer and will claim no ownership interest in the
Contributed Assets. Nothing in this Agreement shall affect the rights
of the Depositor or its assigns under Article IV hereof.
(xii) Sale Treatment. The Depositor will treat the
Sale as a sale for federal income tax and accounting purposes.
(b) Notice of Breach. The representations and warranties
set forth in this Section 3.01(a) shall survive the contribution and sale of the
Contributed Assets to the Issuer. Upon discovery by the Depositor or the Issuer
of a breach of any of such representations and warranties, the party discovering
such breach shall give prompt written notice thereof to the other.
SECTION 3.02.00 ASSIGNMENT OF REPRESENTATIONS AND WARRANTIES
AND COVENANTS OF THE DEPOSITOR REGARDING THE AGENCY SECURITIES.
(a) Representations and Warranties. The Depositor hereby
represents and warrants to the Issuer as of the date of the Sale that:
(i) Immediately before the Sale, the Depositor was
the legal and beneficial owner of all right, title and interest in, to
and under the Contributed Assets, with full right and authority to
assign or otherwise transfer the Contributed Assets free and clear of
any or all Liens encumbering the Contributed Assets;
(ii) Upon execution and delivery by the Depositor and
the Issuer of this Agreement, the Issuer shall acquire the Contributed
Assets free of any Lien;
(iii) The Agency Securities have been duly and
validly issued, are entitled to the benefits of the Underlying Issuing
Documents, and each Underlying Issuing Document has been duly and
validly authorized, executed and delivered, constitutes the valid,
legal and binding obligation of the parties thereto enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by principles of equity (whether considered in a proceeding or
action in equity or at law), and no default has occurred and is
continuing in respect thereof;
(iv) The Agency Securities have been properly
assigned in the manner and form required to effect a transfer of
ownership of the Agency Securities (x) from the Seller to the Depositor
and (y) from the Depositor to the Issuer; and
(v) Each Agency Security has been issued by an entity
which has made an election to be treated as a REMIC, and such election
remains in effect.
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(b) Notice of Breach. The representations and warranties
set forth in this Section 3.02(a) shall survive the contribution and sale of
Contributed Assets to the Issuer. Upon discovery by the Depositor or the Issuer
of a breach of any of such representations and warranties, the party discovering
such breach shall give prompt written notice thereof to the other.
SECTION 3.03.00 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE ISSUER.
(a) The Issuer hereby represents, warrants and covenants,
as of the Closing Date:
(i) Binding Effect. This Agreement has been duly
authorized and, when executed and delivered by the Issuer, assuming the
due authorization and delivery by each party thereto, shall constitute
the legal, valid, enforceable and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms except as
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws, now or hereinafter in effect, affecting the enforcement
of creditors' rights in general and except as such enforceability may
be limited by general principles in equity (whether considered in a
proceeding at law or equity).
(ii) Existence and Power. The Issuer is a statutory
business trust duly formed, validly existing and in good standing under
the laws of the State of Delaware and has all powers and all
governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and as contemplated by this
Agreement.
(iii) Special Purpose Status. The Issuer has not
engaged in any activities since its formation (other than those
incidental to its formation and other appropriate steps including the
authorization and the issuance of the Notes and the Class R
Certificates and the execution of the Underwriting Agreement, the
Certificate Placement Agreement and this Agreement), and the Issuer has
not made any distributions since its formation.
(iv) No Consents. All consents, approvals,
authorizations or other orders of all regulatory authorities required
for or in connection with the execution, delivery and performance of
this Agreement by the Issuer and the issuance and performance of the
Notes and the Class R Certificates and the offering of the Notes and
the Class R Certificates by the Issuer and the creation of the security
therefor have been obtained and are in full force and effect and not
contingent upon fulfillment of any condition.
(v) Governmental Authorization; No Contravention. The
execution, delivery and performance by the Issuer of this Agreement are
within the Issuer's powers, have been duly authorized by all necessary
action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or
regulation of the State of Delaware or
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of the Certificate of Trust of the Issuer or of any agreement or other
instrument binding upon the Issuer or result in the creation or
imposition of any Lien on any asset of the Issuer.
(vi) Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Issuer
threatened against or affecting, the Issuer before any court or
arbitrator or any governmental body, agency or official.
(vii) Not an Investment Company. The Issuer is not,
and is not directly or indirectly controlled by or acting on behalf of
any Person which is, an "investment company" within the meaning of the
Investment Company Act.
(viii) Taxes Upon Execution of This Agreement.
Neither the execution and delivery of this Agreement, nor the
enforcement hereof, is subject to any tax, duty, fee or other charge,
including, without limitation, any registration or transfer tax, stamp
duty, mortgage recordation tax or similar levy, other than those that
have been paid on or prior to the Closing Date.
(ix) No Conflict. The consummation of any of the
transactions contemplated herein will not conflict with or result in
the breach of any material term or provision of this Agreement or any
other agreement to which the Issuer is a party, and the Issuer is not
in breach or violation of or in default (nor, to the best of the
Issuer's knowledge, has an event occurred which with notice or lapse of
time or both would constitute a default) under the terms of (a) any
agreement to which the Issuer is a party or (b) any law, decree, order,
rule or regulation applicable to the Issuer of any court or
supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over its properties, the
default in or the breach or violation of which would have a material
adverse effect on the Issuer or the ability of the Issuer to perform
its obligations under this Agreement.
(x) Sale Treatment. The Issuer shall treat the Sale
as a sale for federal income tax and accounting purposes.
(b) Notice of Breach. The representations and warranties
set forth in Section 3.03(a) shall survive the contribution and sale of the
Contributed Assets to the Issuer. Upon discovery by the Depositor or the Issuer
of a breach of any of such representations and warranties, the party discovering
such breach shall give prompt written notice thereof to the other.
ARTICLE IV
SECTION 4.01.00 OPTIONAL CERTIFICATE REDEMPTION. The
Certificates may be redeemed as provided in Section 5.04 of the Issuer Trust
Agreement.
SECTION 4.02.00 OPTIONAL NOTE REDEMPTION. In the event that
the Seller, as the assignee of the Depositor, has caused the Issuer to redeem
the Class R Certificates or has
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instructed the Issuer to redeem the Class R Certificates, in either case in
accordance with Section 5.04 of the Issuer Trust Agreement, the Seller, as the
assignee of the Depositor, may direct redemption of the Notes as provided in
Section 9.01 of the Issuer Trust Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01.00 AMENDMENT. This Agreement and the rights and
obligations of the parties hereunder may not be amended, modified or waived
orally, but only by an instrument in writing signed by the Issuer and the
Depositor. No amendment to this Agreement shall affect the rights of the Seller
without the prior written consent of the Seller.
SECTION 5.02.00 GOVERNING LAW; SUBMISSION TO JURISDICTION.
This Agreement shall be construed in accordance with and governed by the
substantive laws of the State of New York applicable to agreements made and to
be performed in the State of New York, and the obligations, rights and remedies
of the parties hereto shall be determined in accordance with such laws and
without regard to the conflict of laws principles therein. The parties hereto
hereby submit to the exclusive jurisdiction of the United States District Court
for the Southern District of New York and of the Supreme Court of the State of
New York sitting in New York County (including its Appellate Division), and of
any other appellate court in the State of New York, for the purposes of all
legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The parties hereto hereby irrevocably waive,
to the fullest extent permitted by applicable law, any objection that they may
now or hereafter have to the laying of the venue of any such proceeding brought
in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
SECTION 5.03.00 WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 5.04.00 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 registered mail, return
receipt requested, to:
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(a) in the case of the Depositor,
Fund America Investors Corporation II
c/o The Chotin Group
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) in the case of the Issuer,
FAIC II Issuer Trust 2000-1
c/o Christiana Bank & Trust Company
Greenville Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 5.05.00 SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be 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.
SECTION 5.06.00 ASSIGNMENT. This Agreement may not be assigned
by the parties hereto except with the written consent of the non-assigning
party; provided, that the Depositor, by its execution of this Agreement,
consents to the assignment by the Issuer of its rights under this Agreement to
the Note Trustee, on behalf of the holders of the Notes, pursuant to the terms
of the Indenture, and provided, further, that the Issuer, by its execution of
this Agreement, consents to the assignment by the Depositor of all the
Depositor's rights under Article IV of this Agreement to the Seller pursuant to
the Purchase Agreement.
SECTION 5.07.00 FURTHER ASSURANCES. The Depositor and the
Issuer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
other party more fully to effect the purposes of this Agreement.
SECTION 5.08.00 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Depositor or the Issuer,
any right, remedy, power or
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privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 5.09.00 COUNTERPARTS. This Agreement may be executed
in two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 5.10.00 BINDING EFFECT. This Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
SECTION 5.11.00 MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the other Transaction Documents set
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement and the other Transaction Documents. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 5.12.00 HEADINGS. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
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IN WITNESS WHEREOF, the Issuer and the Depositor each have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
FUND AMERICA INVESTORS
CORPORATION II,
a Delaware corporation
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FAIC II ISSUER TRUST 2000-1
a Delaware statutory business trust
By: Christiana Bank & Trust Company,
solely in its capacity as trustee of the
Issuer
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
[Signature Page to Deposit Agreement]
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SCHEDULE I
AGENCY SECURITIES
[To Come]