Contract
Exhibit
4.4
This
ADMINISTRATION AGREEMENT dated as of [ , 200_] (this “Agreement”), among [Name
of Trustee], a _______ [banking] corporation, not in its individual capacity
but
as trustee (the “Trustee”), [Name of Administrative Agent], a _______ [banking]
corporation, as Administrative Agent (the “Administrative Agent”) and Bond
Products Depositor LLC (the “Depositor”), a Delaware limited liability
company. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned such terms in the Trust Agreement (as defined
below).
W
I T N E S S E T H:
WHEREAS,
concurrently with the execution of this Agreement, [name of Trust] will issue
certificates (the “Certificates”) pursuant to a trust agreement, dated as of [
], 200_ (the “Standard Terms”), between the Depositor and the Trustee, as
supplemented and amended by the Series 200_-[ ] Series Supplement, dated as
of [
], 200_ (the “Series Supplement” and together with the Standard Terms, the
“Trust Agreement”); and
WHEREAS,
the Trustee desires to have the Administrative Agent perform certain of the
duties of the Trustee set forth in the Trust Agreement and to provide such
services consistent with the terms of this Agreement and the Trust Agreement
as
the Trustee may request from time to time;
WHEREAS,
the Administrative Agent desires to perform such services and has the capacity
to provide the services required hereby and is willing to perform such services
on the terms set forth herein; and
WHEREAS,
the Depositor or an affiliate thereof, in order to facilitate the transactions
contemplated in the Trust Agreement, has agreed to pay an amount of money
sufficient to pay the fees and expenses of the Trustee and the Administrative
Agent;
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 hereto agree as follows:
1. Duties
of the Administrative Agent.
(a) Duties
with Respect to the Trust Agreement. The Administrative Agent
shall consult with the Trustee regarding the express duties of the Trustee
under
the Trust Agreement. [The Administrative Agent shall prepare for
execution by the Trust, or shall cause the preparation by other appropriate
persons or entities of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the express duty of the Trustee
to
prepare, file or deliver pursuant to the Trust
Agreement.] [Notwithstanding anything in this Agreement or in the
related documents, the Administrative Agent shall not be responsible for filing
any franchise tax returns, any Delaware tax returns, taking any other action,
or
causing any other filings, required in order to maintain the existence of the
Trust, nor any other actions or filings generally required to be made by the
Trust under Delaware law.] [The Administrative Agent shall not be
responsible for any filings required under the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, or under any state
securities or “Blue Sky” statute.] In furtherance of the foregoing,
the Administrative Agent shall take all appropriate action that is the express
duty of the Trustee to take pursuant to the Trust Agreement including, without
limitation, such of the foregoing as are required with respect to the following
matters under the Trust Agreement (references are to sections of the Standard
Terms):
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(i) [NOTE:
List principal duties under the Trust Agreement to be delegated to the
Administrative Agent];
(b) Additional
Duties.
(i) In
addition to the duties of the Administrative Agent set forth above, the
Administrative Agent shall perform, or cause to be performed all such other
duties and obligations as the Trustee may request which are not covered by
any
of the foregoing provisions to the extent the Administrative Agent has the
ability to perform such functions.
(ii) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrative Agent may enter into transactions with any of
its
affiliates; provided, however, that the terms of any such transactions shall
be
in accordance with the terms of the Trust Agreement, this Administration
Agreement and any directions received from the Trustee and shall be, in the
Administrative Agent’s reasonable opinion, on terms no less favorable to the
Trustee than would be available from unaffiliated parties. If reasonably
necessary to carry out duties or other obligations contemplated hereby, the
Administrative Agent is hereby authorized to select and hire agents or
attorneys-in-fact, and so long as such selection was done with reasonable care,
the Administrative Agent shall not be responsible for the negligent acts or
omissions of such agents or attorneys-in-fact.
(iii)
[The Administrative Agent shall perform the duties of the Administrative Agent
specified in the Trust Agreement required to be performed in connection with
the
resignation or removal of the Trustee, and any other duties expressly required
to be performed by the Administrative Agent under the Trust
Agreement.]
(iv) In
carrying out any of its obligations under this Agreement, the Administrative
Agent may act either directly or through its agents, attorneys, accountants,
independent contractors and auditors and enter into agreements with any of
them.
(c) Non-Ministerial
Matters.
(i) With
respect to matters that in the reasonable judgment of the Administrative Agent
are non-ministerial, the Administrative Agent shall not take any action unless
within a reasonable time before the taking of such action, the Administrative
Agent shall have notified the Trustee of the proposed action and the Trustee
shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence,
“non-ministerial matters” shall include, without limitation:
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[(A)
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the
amendment of or any supplement to the Trust
Agreement;]
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[(B)
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the
initiation of any claim or lawsuit by the Administrative Agent and
the
compromise of any action, claim or lawsuit brought by or against
the
Trustee or the Administrative
Agent;]
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[(C)
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the
appointment of any successor Certificate Registrar, successor
Administrative Agent or successor Trustee pursuant to the Trust Agreement,
or the consent to the assignment by the Certificate Registrar,
Administrative Agent or Trustee of its obligations under the Trust
Agreement;] and
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[(D)
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the
removal of the Trustee.]
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(ii) Notwithstanding
anything to the contrary in this Agreement, the Administrative Agent shall
not
be obligated to, and shall not [(x) make any payments to the Certificateholders
under the Trust Agreement], [(y) sell the Deposited Assets except as provided
for under the Trust Agreement] or (z) take any action that the Trustee directs
the Administrative Agent not to take on its behalf.
2. Records. The
Administrative Agent 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 Trustee at any time during normal
business hours.
3. Additional
Information to Be Furnished to the Trustee.
The
Administrative Agent shall furnish to the Trustee from time to time such
additional information regarding its duties hereunder as the Trustee shall
reasonably request.
4. Independence
of the Administrative Agent. For all purposes of this Agreement,
the Administrative Agent shall be an independent contractor and shall not be
subject to the supervision of the Trustee with respect to the manner in which
it
accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Trustee, the Administrative Agent shall have no
authority to act for or represent the Trustee in any way and shall not otherwise
be deemed an agent of the Trustee.
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5. No
Joint Venture. Nothing contained in this Agreement (i) shall
constitute the creation by Administrative Agent and the Trustee or the Depositor
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.
6. Other
Activities of Administrative Agent. Nothing herein shall prevent
the Administrative Agent or its Affiliates from engaging in other businesses
or,
in its sole discretion, from acting in a similar capacity as and Administrative
Agent for any other person or entity even though such person or entity may
engage in business activities similar to those of the Trustee.
7. Term
of Agreement; Resignation and Removal of Administrative Agent.
(a) This
Agreement shall continue in force until [ ] [20[ ] [the dissolution of the
Trust, upon which event this Agreement shall automatically
terminate].
(b) The
Administrative Agent may resign its duties hereunder by providing the Trustee
with at least [60] days’ prior written notice of its resignation.
(c) The
Trustee may remove the Administrative Agent without cause by providing the
Administrative Agent with at least [60] days’ prior written notice.
(d) The
Administrative Agent may be removed for cause, at the option of the Trustee,
immediately upon written notice of termination from the Trustee to the
Administrative Agent if any of the following events shall occur:
(i) the
Administrative Agent 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 [10] days (or, if such default cannot be cured in such time, shall not
give within [10] days such assurance of cure as shall be reasonably satisfactory
to the Trustee);
(ii) the
entry of a decree or order by a court having jurisdiction over the
Administrative Agent, adjudging the Administrative Agent as bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Administrative
Agent under any bankruptcy law, or appointing a receiver, liquidator, assignee,
or sequestrator (or other similar official) of the Administrative Agent or
of
any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed and
in
effect for a period of [sixty (60)] consecutive days;
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(iii) the
institution by the Administrative Agent of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by the Administrative Agent to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by
the Administrative Agent of a petition or answer or consent seeking
reorganization or relief under any bankruptcy law, or the consent by either
the
Administrative Agent to the filing of any such petition or to the appointment
of
a receiver, liquidator, assignee, trustee or sequestrator (or other similar
official) of the Administrative Agent or of any substantial part of its
property, or to the ordering of the winding up or liquidation of its affairs,
or
the making by the Administrative Agent of an assignment for the benefit of
creditors, or the admission by the Administrative Agent in writing of its
inability to pay its debts generally as they become due, or the taking of any
action by the Administrative Agent in furtherance of any such
action;
The
Administrative Agent 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 Trustee within [seven] days after the occurrence of such event.
(e) No
resignation or removal of the Administrative Agent pursuant to this Section
shall be effective until (i) a successor Administrative Agent shall have been
appointed by the Trustee and (ii) such successor Administrative Agent shall
have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrative Agent is bound hereunder.
(f) The
appointment of any successor Administrative Agent shall be effective only after
each Rating Agency, after having been given [10] days’ prior notice of such
proposed appointment, shall have stated in writing that such appointment will
not result in a reduction or withdrawal of the then current rating of the
Certificates.
8. Action
upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 7(a) or
the
resignation or removal of the Administrative Agent pursuant to Sections 7(b)
or
(c), respectively, the Administrative Agent shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrative Agent shall forthwith upon
such termination pursuant to Section 7(a) deliver to the Trustee all property
and documents of or relating to the Trust then in the custody of the
Administrative Agent. In the event of the resignation or removal of
the Administrative Agent pursuant to Section 7(b) or (c), respectively, the
Administrative Agent shall cooperate with the Trustee and take all reasonable
steps requested to assist the Trustee in making an orderly transfer of the
duties of the Administrative Agent.
9. Assessment
and Attestation Requirements. The Administrative Agent agrees to
provide, at the Depositor's direction (i) reports on assessments of compliance
with applicable servicing criteria mutually agreed upon by the Administrative
Agent and the Depositor and (ii) attestation reports on assessments of
compliance with such servicing criteria prepared by an independent public
accountant sufficient for the Trust and the Depositor to satisfy their
obligations under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of
Regulation AB.
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10. Notices. Any
notice, report or other communication given hereunder shall be in writing and
addressed as follows:
(a) If
to the Trustee, to:
[name
and
address of the Trustee]
(b) If
to the Administrative Agent, to:
[name
and
address of the Administrative Agent]
(c) If
to the Depositor, to:
[name
and
address of the Depositor]
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.
11. Amendments. This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the Administrative Agent, the Depositor and the Trustee,
without the consent of the Certificateholders, and after receiving notification
from the Rating Agencies that such amendment shall not cause the rating of
the
Certificates to be reduced, suspended or withdrawn, 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
Certificateholders; provided that such amendment will not, in an Opinion of
Counsel satisfactory to the Trustee, materially and adversely affect the
interest of any Certificateholder. This Agreement may also be amended by the
Administrative Agent, the Depositor and the Trustee with the written consent
of
[[ ]% of the Certificateholders] 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 Certificateholders; 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 distributions
on
the Deposited Assets or (ii) reduce the aforesaid percentage of
Certificateholders which are required to consent to any such amendment, without
the consent of the holders of all the Outstanding Certificates.
12. Successors
and Assigns. This Agreement may not be assigned by the
Administrative Agent unless such assignment is previously consented to in
writing by the Trustee and the Depositor and unless the Rating Agencies, after
having been given [10] days prior notice of such assignment, shall have declared
in writing that such assignment will not result in a reduction or withdrawal
of
the then current rating of the Certificates. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrative Agent is bound
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrative Agent without the consent of the Trustee or
the
Depositor to a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrative Agent; provided
that
such successor organization executes and delivers to the Trustee and the
Depositor 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
Administrative Agent is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties
hereto.
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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.
14. 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.
15. Counterparts. This
Agreement may be executed in counterparts, each of which when so executed shall
together constitute but one and the same agreement.
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.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
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[NAME OF
TRUSTEE],
as
Trustee
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By:
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| Name: | |||
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[NAME OF
ADMINISTRATIVE AGENT],
as
Administrative Agent
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By:
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| Name: | |||
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