Exhibit 4.2
Form of Administation Agreement
Exhibit No. 4.2
ADMINISTRATION AGREEMENT
between
FINANCE AMERICA SECURITIES, LLC [ ]
Issuer
and
[ ],
Administrator
Dated as of [ ]
This Administration Agreement (the "Agreement") is entered into as of
[ ], between Finance America Securities, LLC Trust [ ], a [Delaware] business
trust (the "Issuer") and [ ], a [national banking association], not in its
individual capacity but as administrator (the "Administrator").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Indenture, the Trust Agreement, the Custodial
Agreement or the Sale and Servicing Agreement (each as defined herein).
W I T N E S S E T H:
WHEREAS, the Issuer is a business trust under the Delaware Business
Trust Act (12 Del.C. ss. 3801 et seq.) created by a Trust Agreement relating
to the Trust, dated as of August 1, 1999 (the "Trust Agreement"), between
Finance America Securities, LLC, as depositor (in such capacity, the
"Depositor") and [ ], as owner trustee (the "Owner Trustee");
WHEREAS, the Issuer will issue Notes and Certificates designated as
Finance America Securities, LLC [ ] Trust [Asset Backed] Securities, Series [
] (collectively, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture, dated as of [ _ ]
(the "Indenture"), between the Issuer and [ ], as indenture
trustee (in such capacity, the "Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust
Agreement and will represent the undivided beneficial ownership interest in
the Trust;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Securities, including (i) a Sale and Servicing
Agreement, dated as of [ ] (as amended and supplemented from time to time, the
"Sale and Servicing Agreement"), among the Issuer, [ ],
as servicer (the "Servicer"), the Depositor and the Indenture Trustee, (ii)
the Note Depository Agreement (as defined in the Indenture), (iii) the
Indenture, (iv) the Trust Agreement, and (v) the Custodial Agreement dated as
of [ ] (the "Custodial Agreement") among the Issuer, the
Indenture Trustee, the Servicer and [ ], as
custodian (in such capacity the "Custodian") (the Sale and Servicing
Agreement, the Note Depository Agreement, the Indenture, the Trust Agreement
and the Custodial Agreement being hereinafter referred to collectively as the
"Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with (a) the Notes and the Collateral
therefor pledged pursuant to the Indenture and (b) the beneficial ownership
interest in the Issuer represented by the Certificates;
WHEREAS, the Issuer desires to have the Administrator 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 has the capacity to provide the respective
services required hereby and is 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 with Respect to the Note
Depository Agreement, the Sale and Servicing Agreement, the Indenture, the
Trust Agreement and the Custodial Agreement.
(a) The Administrator agrees to perform all of the duties of the
Issuer under the Note Depository Agreement. In addition, the Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer under
the Indenture, to the extent that such consultation is, in the judgment of the
Administrator, necessary or appropriate to the performance by it of its
obligations hereunder. The Administrator shall advise the Owner Trustee when
action is necessary to comply with the Issuer's duties under the Indenture.
The Administrator shall prepare for execution by the Owner Trustee or shall
cause the preparation by the appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions that it shall be the
duty of the Issuer or the Owner Trustee to prepare pursuant to the Indenture,
and the Administrator shall take all appropriate action that is the duty of
the Issuer to take with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(i) the preparation of the Notes for execution by the Owner
Trustee upon their issuance and upon the registration of any transfer
or exchange of the Notes (Sections [2.02, 2.03 and 2.04];
(ii) the duty to cause the Note Register to be kept if the Issuer
assumes the duties of Note Registrar, 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]);
(iii) the preparation of an Issuer Order for authentication of
the Notes and delivery of the same to the Indenture Trustee (Section
[2.08]);
(iv) the preparation of an Issuer Request required for the
release of collateral and delivery of the same to the Indenture
Trustee and the preparation, obtaining or filing of the instruments,
opinions, certificates and other documents required for the release of
collateral (Section [2.09]);
(v) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency, the duty to attempt to locate a
qualified successor to the Clearing Agency, if necessary, and the
preparation of written notice to the Indenture Trustee of termination
of the book entry system through the Clearing Agency (Section [2.12]);
(vi) the maintenance of an office in [ ], for
registration of transfer or exchange of Notes (Section [3.02]);
(vii) the preparation of an Issuer Order required to appoint a
Paying Agent, the preparation of written notice to the Indenture
Trustee [and the Note Insurer] of such appointment and the duty to
cause newly appointed Paying Agents, if any, to execute and deliver to
the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section [3.03]);
(viii) the preparation of an Issuer Order required to direct the
Paying Agent to pay to the Indenture Trustee all sums held in trust by
the Paying Agent (Section [3.03]);
(ix) the provision to the Indenture Trustee of 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 that the Administrator has received
from [ ___________________________ ] sufficient information to
calculate such amounts (Section [3.03]);
(x) the 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 Collateral (Section [3.05]);
(xi) the annual delivery of Opinions of Counsel, in accordance
with Section [3.06] of the Indenture, as to the Trust Estate, and the
annual delivery of the Officers' Certificate and certain other
statements, in accordance with Section [3.09] of the Indenture, as to
compliance with the Indenture (Sections [3.06 and 3.09]);
(xii) upon written notice or actual knowledge thereof, the
notification of the Indenture Trustee, [the Note Insurer] and each
Rating Agency of an Event of Default under the Sale and Servicing
Agreement and, if such Event of Default arises from the failure of the
Servicer to perform any of its duties under the Sale and Servicing
Agreement with respect to the Mortgage Loans, the taking of all
reasonable steps available to remedy such failure (Section [3.07(d)]);
(xiii) the monitoring of the Issuer's compliance with its
negative covenants (Section [3.08]);
(xiv) upon written notice or actual knowledge thereof, the
delivery of notice to the Indenture Trustee [the Note Insurer] and the
Rating Agencies of each Event of Default under the Indenture and each
default by the Servicer or Depositor under the Sale and Servicing
Agreement (Section [3.14]);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture (Section [4.01]);
(xvi) the preparation of an Officer's Certificate and the
obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto with respect to any request by the Issuer to the
Indenture Trustee to take any action under the Indenture (Sections
[4.01 and 11.01]);
(xvii) the compliance with any directive of the Indenture Trustee
with respect to the preparation of documents in connection with the
sale of the Trust Estate in a commercially reasonable manner if an
Event of Default shall have occurred and be continuing under the
Indenture (Section [5.04]);
(xviii) the compliance with any directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing under the Indenture (Section [5.05]);
(xix) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section [7.01]);
(xx) the preparation and filing of all documents and reports
by the Issuer as required under the Exchange Act, the rules and
regulations of the Commission and the TIA (Section [7.03]);
(xxi) the preparation of an Issuer Request and Officers'
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral, as
defined in the Indenture (Sections [8.05 and 8.06]);
(xxii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and, if necessary, the mailing to the Noteholders of
notices with respect to their consent to such supplemental indentures
(Sections [9.01, 9.02 and 9.03]);
(xxiii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to any proposed amendment of the
Trust Agreement or amendment to or waiver of any provision of any
other document relating to the Trust Agreement (Section [9.07]);
(xxiv) the notification of the Rating Agencies [and the Note
Insurer] of a redemption of the Notes (Section [10.01]);
(xxv) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section [11.04]); and
(xxvi) any other duties expressly required to be performed by the
Administrator under the Indenture.
(b) The Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the Sale and Servicing
Agreement, to the extent that such consultation is, in the judgment of the
Administrator, necessary or appropriate to the performance by it of its
obligations hereunder. The Administrator shall advise the Owner Trustee when
action is necessary to comply with the Issuer's or the Owner Trustee's duties
under the Sale and Servicing Agreement. The Administrator shall prepare for
execution by the Owner Trustee, or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Sale and Servicing
Agreement, except as otherwise provided herein.
(c) The Administrator shall perform, or cause to be performed, such
duties and take, or cause to be taken, such actions, as are required to be
performed or taken with respect to the Trust under the Code, including the
duties and actions of the Owner Trustee under Section [5.05] of the Trust
Agreement. The Administrator shall prepare for signature by the Owner Trustee
and, upon obtaining such signature, shall file or cause to be filed with the
Internal Revenue Service federal tax or information returns with respect to
the Trust and the Securities containing such information and at the times and
in such manner as may be required by the Code or applicable Treasury
regulations, and shall furnish to Holders such statements or information at
the times and in such manner as may be required thereby; PROVIDED, HOWEVER,
that the Administrator shall not be required to compute the Issuer's gross
income; and provided, further, that the Administrator shall not be required to
prepare and file partnership tax returns on behalf of the Issuer unless it
receives an opinion of counsel (which shall not be at the Administrator's
expense, but shall be at the expense of the Seller or other party furnishing
such opinion) as to the necessity of such filings. The Owner Trustee shall
sign all tax information returns filed pursuant to this Section.
(d) The Administrator shall timely file all reports required to be
filed by the Trust with any federal, state or local governmental authority
having jurisdiction over the Trust, including the Internal Revenue Service's
Form 1041 prepared for a grantor trust signed by the Owner Trustee, and
including any other reports that must be filed with the Securityholders.
Furthermore, the Administrator shall report to Holders, if required, with
respect to the allocation of expenses pursuant to Section 212 of the Code in
accordance with the specific instructions to the Administrator by the Seller
with respect to such allocation of expenses. Absent specific instructions, the
Administrator shall allocate expenses to Holders based on the right of each
Holder to gross stated interest on the Home Loans. The Administrator shall
collect any forms or reports from the Holders determined by the Seller to be
required under applicable federal, state and local tax laws.
(e) Unless required otherwise by provisions of the Internal Revenue
Code or interpretations thereof, the Administrator shall treat the Trust as a
grantor trust and not as an association taxable as a corporation for federal
income tax purposes.
(f) The Administrator hereby accepts its appointment under Section
[3.05] of the Trust Agreement as Certificate Registrar and its appointment
under Section [3.10] of the Trust Agreement as Paying Agent. The Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer or the
Owner Trustee under the Trust Agreement, to the extent that such consultation
is, in the judgment of the Administrator, necessary or appropriate to the
performance by it of its obligations hereunder. The Administrator shall advise
the Owner Trustee when action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Trust Agreement. The Administrator shall
prepare for execution by the Issuer, or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings, tax returns,
instruments, certificates and opinions that it shall be the duty of the Issuer
or the Owner Trustee to prepare, file or deliver pursuant to the Trust
Agreement and shall take all appropriate action that is the duty of the Issuer
or the Owner Trustee to take pursuant to the Trust Agreement, as required with
respect to the following matters under the Trust Agreement (references are to
sections of the Trust Agreement):
(i) the preparation of Definitive Certificates in accordance with
the instructions of the Clearing Agency, the duty to attempt to locate
a qualified successor to the Clearing Agency, if necessary, and the
preparation of written notice to the Owner Trustee of termination of
the book-entry system through the Clearing Agency (Section 3.13);
(ii) the preparation of Certificates for execution by the Owner
Trustee upon their issuance and upon the registration of any transfer
or exchange of the Certificates and delivery thereof (Sections [3.02,
3.05, and 3.06]);
(iii) the duty to furnish a list of Certificateholders of record
(Section 3.08);
(iv) the maintenance of an office in [ ], for registration of
transfer or exchange of Certificates (Section [3.09]);
(v) the duty to cause newly appointed Paying Agents, if any, to
deliver the instrument specified in the Trust Agreement regarding
funds held in the Certificate Distribution Account (Section [3.10]);
(vi) the delivery to the Owners of any documents furnished to the
Owner Trustee under the Related Agreements (Section [7.02]);
(vii) the duties required to be performed by the Administrator in
connection with the resignation or removal of the Owner Trustee
(Section [10.02]);
(viii) any other duties expressly required to be performed by the
Administrator under the Trust Agreement; and
(ix) the delivery to any Certificateholder and any prospective
transferee designated by any such Certificateholder of information
necessary to satisfy the condition of eligibility set forth in Rule
144A under the Securities Act for transfer of any Certificate (Section
[3.04(b)]).
(g) The Administrator, to the extent of the Custodian's obligation to
do so pursuant to the Custodial Agreement, shall prepare for filing by the
Custodian or shall cause the preparation by other appropriate persons of any
federal and state income tax returns and information statements required to be
prepared and filed by the Custodian on behalf of the custodial arrangement as
a grantor trust, in compliance with the method of reporting required by
Treasury Regulation 1.67-4.
(h) In addition to the duties of the Administrator set forth above,
the Administrator, to the extent of the Issuer's obligation to do so, 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 or the Custodian shall take all appropriate action that it is
the duty of the Issuer or the Custodian to take pursuant to the Related
Agreements. Subject to Section 4 of this Agreement, and in accordance with the
directions of the Owner Trustee [or the Note Insurer], the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Trust Estate (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by
the Owner Trustee [or the Note Insurer] and are reasonably within the
capability of the Administrator. The Administrator shall use the same degree
of care and skill as is reasonably expected of financial institutions acting
in comparable capacities.
With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not be obligated to
take any action, and in any event shall not take any action, unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee [and the Note Insurer] of the proposed action and
the Owner Trustee [and the Note Insurer] shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation, (A) the amendment
of or any supplement to any of the Related Documents; (B) the initiation of
any claim or lawsuit by the Issuer, the Owner Trustee or the Custodian and the
compromise of any action, claim or lawsuit brought by or against the Issuer,
the Owner Trustee or the Custodian; (C) any involvement in any lawsuit or
other legal action against the Indenture Trustee or the Servicer, including
without limitation, consenting to the settlement of any third party claim by
the Indenture Trustee; (D) the removal of the Indenture Trustee or the
appointment of a successor Indenture Trustee pursuant to the Indenture; (E)
the appointment of a successor Servicer pursuant to the Sale and Servicing
Agreement; (F) the removal of the Owner Trustee; and (G) any action that the
Issuer or the Owner Trustee is entitled but not obligated to take under the
Related Documents, provided that, notwithstanding the foregoing, the
Administrator may with the consent of the Owner Trustee [and the Note Insurer]
take any action with respect to non-ministerial matters that the
Administrator, in its good faith judgment, deems to be in the best interests
of the Issuer.
Notwithstanding anything to the contrary in this Agreement, (A) the
Administrator, in its individual capacity, shall not be responsible for any
payment obligation of the Issuer or the Owner Trustee and (B) the
Administrator shall not be obligated to, and shall not, take any action that
the Owner Trustee directs the Administrator not to take on its behalf or on
behalf of the Issuer.
(i) 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 Trust's payments (or allocations of income) to an Owner as
contemplated in Section [5.02(c)] of the Trust Agreement. Any such notice
shall specify the amount of any withholding tax required to be withheld by the
Owner Trustee pursuant to such provision.
(j) 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 Section [5.05(a),
(b), (c) and (d)] of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; PROVIDED, HOWEVER, that the Owner Trustee
shall retain responsibility for the distribution (with the Depositor's
cooperation) of any information necessary to enable each Owner to prepare its
federal and state income tax returns.
Section 2. 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 or the
Indenture Trustee at any time after reasonable notice during normal business
hours.
Section 3. Compensation. The Administrator will perform the duties and
provide the services called for under Section 1 above without any separate
compensation therefor for so long as the Agency Agreement dated as of
[ ] between the Administrator and the Indenture Trustee
remains in effect, and thereafter for such compensation as shall be agreed
upon between the Administrator and the Owner Trustee. The Administrator shall
perform any other services as may be agreed between the Administrator and the
Owner Trustee for such compensation as may be agreed between the Administrator
and the Owner Trustee. The Administrator agrees to perform all its duties
under this Agreement regardless of any non-payment of fees or expenses by the
Owner Trustee.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Trust Estate as the Issuer shall reasonably request.
Section 5. 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 or the Owner Trustee, as
applicable, 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 6. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its 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 8. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force until the termination of
the Trust Agreement in accordance with its terms, upon which event this
Agreement shall automatically terminate.
(b) Subject to Section 8(e) hereof, the Administrator may resign its
duties hereunder by providing the Issuer [and the Note Insurer] with at least
60 days' prior written notice.
(c) Subject to Section 8(e) hereof, the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice [with a copy to the Note Insurer].
(d) Subject to Section 8(e) hereof, the Issuer may remove the
Administrator immediately upon written notice of termination to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default
cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Issuer
and the Custodian, as applicable);
(ii) a court having jurisdiction in the premises shall (x) enter
a decree or order for relief, which 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, (y) appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its
property, or (z) order the winding-up or liquidation of the
Administrator's affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Issuer, the Note Insurer and the Indenture Trustee
within seven days after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until [(i) a successor Administrator reasonably
acceptable to the Note Insurer shall have been appointed by the Issuer and
(ii)] such successor Administrator shall have agreed in writing to be bound by
the terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
Section 9. Action upon Termination, Resignation or Removal of the
Administrator. Promptly upon the effective date of termination of this
Agreement pursuant to Section 8(a) hereof or the resignation or removal of the
Administrator pursuant to Section 8(b) or (c) hereof, 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 8(a)
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(b), (c) or
(d), respectively, 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 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer, to:
Finance America Securities, LLC [ ] Trust [ ]
(b) if to the Administrator, to:
(c) [if to the Note Insurer, to:]
or to such other address as any party shall have provided to the other party
in writing. All notices required hereunder shall be deemed given when
delivered to the address of such party as provided above.
Section 11. Amendments. This Agreement may be amended from time to
time by the Issuer, [the Note Insurer] and the Administrator without the
consent of any of the Securityholders, (i) to cure any ambiguity, (ii) to
correct or supplement any provision herein that may be defective or
inconsistent with any other provisions herein or to conform the provisions
hereof to those of the Offering Document or the Related Documents, (iii) to
obtain a rating for a Class of Securities from a nationally recognized
statistical rating organization, or (iv) to make any other provisions with
respect to matters or questions arising under this Agreement; PROVIDED,
HOWEVER, that no such amendment effected pursuant to clause (iv) of this
paragraph shall adversely affect in any material respect the interests of any
Holder not consenting thereto. Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Issuer may require an
Opinion of Counsel (in the case of clauses (i) and (ii), at the expense of the
Issuer, and otherwise at the expense of the party requesting such amendment)
to the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder of Securities that are rated by either Rating Agency if the Issuer
receives written confirmation from such Rating Agency that such amendment will
not cause such Rating Agency to qualify, reduce or withdraw the then current
rating assigned to such Class of rated Securities.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Owner Trustee, [the Note Insurer] and the Rating Agency
Condition in respect thereof has been satisfied. 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 to a corporation or
other organization that is a successor (by merger, consolidation or purchase
of assets) to the Administrator, provided that such successor organization
executes and delivers to the Issuer and the Owner Trustee 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 13. 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 14. Headings. The section headings hereof have been inserted
for convenience of eference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute one and
the same agreement.
Section 16. 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 17. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been
countersigned by [ ] not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
[ ] 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 [Six, Seven and Eight] of the Trust
Agreement.
Section 18. Limitation on Liability of the Administrator. The
Administrator shall have no duties or obligations other than those
specifically set forth herein, and no further duties or obligations shall
arise by implication or otherwise. None of the Administrator or any director,
officer, employee or agent of the Administrator shall be under any liability
for any action taken, or not taken, in good faith pursuant to this Agreement,
or for errors in judgment; PROVIDED, HOWEVER, that this provision shall not
protect the Administrator against any liability which would otherwise be
imposed by reason of the Administrator's willful misconduct, bad faith or
negligence in the performance of its obligations or duties hereunder. The
Administrator and any director, officer, employee or agent of the
Administrator 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. The Administrator shall be under no duty to inquire into or
investigate the validity, accuracy or content of such document, except in any
circumstance in which the Issuer would otherwise be required to make such
inquiry or investigation. No provision of this Agreement shall require the
Administrator to expend or risk its own funds or otherwise incur financial
liability in the performance of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity is not reasonably assured to it. [Finance America, LLC] shall
indemnify the Administrator for and hold it harmless against any loss,
liability or expense arising out of or in connection with this Agreement and
carrying out its duties hereunder, including the costs and expenses of
defending itself against any claim of liability, except in those cases where
the Administrator has been guilty of bad faith, negligence or willful
misconduct. The foregoing indemnification shall survive any termination of
this Agreement or the resignation or removal of the Administrator.
Section 19. [Benefit of Agreement. It is expressly agreed that in
performing its duties under this Agreement, the Administrator will act for the
benefit of the Note Insurer, the holders of the Securities as well as for the
benefit of the Trust, and that such obligations on the part of the
Administrator shall be enforceable at the instance of the Indenture Trustee
and the Trust. The parties hereto acknowledge that the Note Insurer is an
express third party beneficiary hereof entitled to enforce any rights reserved
to it as if it were actually a party hereto.]
Section 20. Bankruptcy Matters. No party to this Agreement shall take
any action to cause the Trust to dissolve in whole or in part or file a
voluntary petition or otherwise initiate proceedings to have the Trust
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust, or file a petition seeking or
consenting to reorganization or relief of the Trust as debtor under any
applicable federal or state law relating to bankruptcy, insolvency, or other
relief for debtors with respect to the Trust; or seek or consent to the
appointment of any trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of the Trust or of all or
any substantial part of the properties and assets of the Trust, or cause the
Trust to make any general assignment for the benefit of creditors of the
Trust, or take any action in furtherance of any of the above actions.
IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
FINANCE AMERICA SECURITIES, LLC [ ]
Trust [ ], as Issuer
By: [ ], not in its
individual capacity but solely as Owner
Trustee
By: ___________________________________
Name:
Title:
[ ],
as Administrator
By: __________________________________
Name:
Title:
Acknowledged and Agreed to:
[FINANCE AMERICA, LLC]
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
