EXHIBIT 4.6
EXECUTION COPY
XXXXX HOME EQUITY LOAN TRUST 2001-2,
as Issuer,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Administrator,
and
XXXXX UNION BANK AND TRUST COMPANY,
as Master Servicer
ADMINISTRATION AGREEMENT
Dated as of August 31, 2001
TABLE OF CONTENTS
PAGE
Section 1. Duties of Administrator...........................................4
Section 2. Duties of the Master Servicer With Respect to the Indenture.......5
Section 3. Records...........................................................7
Section 4. Compensation......................................................7
Section 5. Additional Information to be Furnished to the Issuer..............7
Section 6. Independence of the Administrator.................................7
Section 7. No Joint Venture..................................................7
Section 8. Other Activities of Administrator and Master Servicer.............7
Section 9. Term of Agreement; Resignation and Removal........................7
Section 10. Action upon Termination, Resignation or Removal..................9
Section 11. Notices..........................................................9
Section 12. Amendments.......................................................9
Section 13. Successor and Assigns...........................................10
Section 14. Governing Law...................................................10
Section 15. Headings........................................................10
Section 16. Counterparts....................................................10
Section 17. Severability....................................................10
Section 18. Limitation of Liability of Owner Trustee........................10
Section 19. Benefit of Agreement............................................11
Section 20. Bankruptcy Matters..............................................11
This Administration Agreement, dated as of August 31, 2001, is among Xxxxx
Home Equity Loan Trust 2001-2, a Delaware business trust, as issuer (the
"Issuer"), Xxxxx Fargo Bank Minnesota, National Association, a national banking
corporation, as administrator (the "Administrator"), and Xxxxx Union Bank and
Trust Company, a bank chartered under the laws of the State of Indiana, as
master servicer (the "Master Servicer").
WlTNESSETH:
WHEREAS, the Issuer is a business trust under the Delaware Business Trust
Act (12 DEL. C.ss.3801 et seq.) created and governed by a trust agreement dated
as of August 31, 2001 (the "Trust Agreement"), between Bear Xxxxxxx Asset Backed
Securities, Inc., as depositor (the "Depositor"), and Wilmington Trust Company,
as owner trustee (the "Owner Trustee");
WHEREAS, the Issuer will issue Home Equity Loan-Backed Notes, Series 2001-2
(the "Notes") and Home Equity Loan-Backed Certificates, Series 2001-2 (the
"Certificates" and, together with the Notes, the "Securities");
WHEREAS, the Notes will be issued pursuant to an indenture dated as of
August 31, 2001 (the "Indenture"; all capitalized terms used and not defined
herein shall have the meaning assigned thereto in Appendix A to the Indenture),
between the Issuer and Xxxxx Fargo Bank Minnesota, National Association, as
indenture trustee (in such capacity, the "Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust Agreement
and will represent undivided beneficial ownership interests in the Trust;
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Securities, including (a) a sale and servicing agreement
dated as of August 31, 2001 (the "Sale and Servicing Agreement"), among the
Issuer, the Depositor, IHE Funding Corp. II, as Transferor, and the Indenture
Trustee, (b) the letter of representations dated September 28, 2001, among the
Issuer, the Indenture Trustee and The Depository Trust Company relating to the
Term Notes (the "Depository Agreement"), (c) the Indenture, (d) the Interest
Rate Cap Agreements and (e) the Trust Agreement (the Sale and Servicing
Agreement, the Depository Agreement, the Indenture, the Interest Rate Cap
Agreements and the 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 (a) the Notes and the collateral
pledged to support the Notes pursuant to the Indenture (the "Collateral") and
(b) the beneficial ownership interests in the Issuer represented by the
Certificates;
WHEREAS, the Issuer desires to have the Administrator and the Master
Servicer, respectively, perform certain of the duties of the Issuer referred to
in the preceding clause, and to provide such additional services consistent with
the terms of this Agreement and the Related Agreements as the Issuer may from
time to time request; and
WHEREAS, the Administrator and the Master Servicer have the capacity to
provide the respective services required hereby and are willing to perform such
services for the Issuer on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. DUTIES OF ADMINISTRATOR. The Administrator shall perform all of
the duties of the Issuer under the Depository Agreement. The Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer under the Sale
and Servicing Agreement, the Indenture and the Depository Agreement. 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 (parenthetical
section references are to sections of the Indenture):
(a) to maintain an office for transfers at the Corporate Trust Office of
the Indenture Trustee (Section 3.02);
(b) to cause the Paying Agents to engage in certain specified activities
and undertake certain specified activities with respect to any Paying Agents
(Section 3.03);
(c) to enforce the obligation of the Transferor under the Sale and
Servicing Agreement for recording Assignments of Mortgages (Section 3.11);
(d) to give prompt written notice of each Event of Default under the
Indenture, to the extent the Administrator has knowledge thereof (Section 3.23);
(e) to execute and deliver any further instruments in order to carry out
the purpose of the Indenture (Section 3.24);
(f) reserved;
(g) to approve a successor Depository and give the order to allow the Owner
Trustee to execute the original Notes on its behalf (Section 4.01);
(h) to undertake the activities required to register, transfer and exchange
the Notes (Section 4.02);
(i) to undertake the activities required to replace mutilated, destroyed,
lost or stolen Notes (Section 4.03);
(j) to undertake the activities required to cancel the Notes (other than
the signature of the Owner Trustee thereon) (Section 4.05);
(k) upon prior written notice from the Master Servicer, (accompanied by any
required Officer's Certificate or Opinion of Counsel required of the Issuer,
which in the case of the Officer's Certificate may be executed by the Master
Servicer on behalf of the Issuer), to execute and deliver the required items to
satisfy and discharge the Indenture (Section 4.10);
(l) to issue the demand to repay all monies held by the Paying Agent upon
discharge of the Indenture (Section 4.13);
(m) to direct and cause the creation of temporary Notes (Section 4.14);
(n) at the written request of the Indenture Trustee, to take all lawful
action to compel the performance of the Transferor and the Master Servicer
(Section 5.17);
(o) to furnish names and addresses of Noteholders to the Indenture Trustee
(Section 7.01);
(p) to make the required filings with the Commission (Section 7.03);
(q) to determine new Notes pursuant to a supplemental indenture (Section
9.06); and
(r) to effect the recording of the Indenture upon notification of the need
to record the Indenture (Section 10.14).
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 of the Trust Agreement with
respect to, among other things, accounting and reports to Certificateholders;
provided, however, that the Owner Trustee shall retain responsibility for the
distribution of the Schedule K-1s necessary to enable each Certificateholder to
prepare its federal and state income tax returns and provided further that the
Administrator shall have no liability for any loss or liability on account of
the failure of the Master Servicer to deliver loan level data to the
Administrator.
The Administrator shall perform the duties, if any, expressly required to
be performed by the Administrator under the Trust Agreement and the Sale and
Servicing Agreement.
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. The
Administrator shall have all of the rights and protections of the Indenture
Trustee set forth in Article VI of the Indenture.
Section 2. DUTIES OF THE MASTER SERVICER WITH RESPECT TO THE INDENTURE.
(a) The Master Servicer shall take all appropriate action that is the duty
of the Issuer to take with respect to the following matters under the Indenture
(parenthetical section references are to sections of the Indenture):
(i) to effect any required qualification to do business of the Issuer
in a jurisdiction other than Delaware (Section 3.04);
(ii) to give written notice to the Indenture Trustee of the Legal
Final Payment Date for any Class of Notes (Section 3.05(f));
(iii) to cause delivery of the Opinions of Counsel regarding the Trust
Estate required on the Closing Date and annually thereafter (Section 3.07);
(iv) to prepare and deliver to the Issuer for signature the annual
statement as to Issuer compliance (Section 3.10);
(v) to deliver the required items in the event of a consolidation,
merger or conveyance of assets (Section 3.16);
(vi) to deliver an Officer's Certificate upon learning of the
occurrence of an Event of Default (Section 5.01);
(vii) to remove the Indenture Trustee and appoint a successor
Indenture Trustee upon the occurrence of certain events (Section 6.08);
(viii) to furnish an Officer's Certificate pursuant to Section 8.03 of
the Indenture (Section 8.03);
(ix) to issue a request to release property from the Lien of the
Indenture (Section 8.05);
(x) to request a supplemental indenture not requiring consent of the
Noteholders (Section 9.01) and provide any required Opinion of Counsel or other
certification in connection therewith;
(xi) to request a supplemental indenture requiring consent of the
Noteholders (Section 9.02); and
(xii) to provide the Officer's Certificates and Opinions of Counsel
required pursuant to Section 10.01 of the Indenture.
(b) Except as otherwise set forth in Section 1 and in Section 4.02 of the
Trust Agreement, in addition to the duties of the Master Servicer set forth
above, the Master Servicer shall prepare for execution by the Issuer or shall
cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer to prepare, file or deliver pursuant to the Related Agreements,
and at the request of the Owner Trustee shall take all appropriate action that
it is the duty of the Issuer to take pursuant to the Related Agreements. Subject
to Section 5, and in accordance with the directions of the Owner Trustee, the
Master Servicer shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Master Servicer.
(c) Notwithstanding anything in this Agreement or the Related Agreements to
the contrary, the Administrator shall be responsible for promptly notifying the
Owner Trustee in the event that any withholding tax is imposed on the Trust's
payments (or allocations of income) to a Certificateholder as contemplated by
Section 5.01(b) 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.
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
Master 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 for so long as it remains
Indenture Trustee under the Indenture. The Administrator shall be entitled to
receive on each Payment Date reimbursement from the Master Servicer for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable expenses and disbursements of the Administrator's agents,
counsel, accountants and experts. In the event that the Administrator is
required to prepare partnership tax returns for the Trust, the Administrator
shall be paid additional reasonable compensation as shall be agreed between the
Administrator and the Master 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 Master Servicer with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 7. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Administrator or the Master Servicer, respectively, and either 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 8. OTHER ACTIVITIES OF ADMINISTRATOR AND MASTER SERVICER. Nothing
herein shall prevent the Administrator, the Master Servicer or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other Person or entity
even though such Person or entity may engage in business activities similar to
those of the Issuer or the Owner Trustee.
Section 9. TERM OF AGREEMENT; RESIGNATION AND REMOVAL.
(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 9(e), the Administrator may resign from its duties
hereunder by providing the Issuer with at least 60 days' prior written notice.
(c) Subject to Section 9(e), the Master Servicer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 9(e), the Master Servicer may remove the
Administrator, immediately upon written notice of termination from the Master
Servicer 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 within such
period, shall not give within ten days of such notice such assurance of cure as
shall be reasonably satisfactory to the Master Servicer);
(ii) a court having jurisdiction in the premises shall enter 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 Proceeding under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any substantial part
of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary Proceeding 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
Proceeding 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 its 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 Master Servicer within seven days thereafter.
(e) No resignation or removal of the Administrator pursuant to this Section
shall be effective until (i) a successor Administrator shall have been appointed
by the Master Servicer and 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) Subject to Sections 9(e) and 9(b), the Administrator acknowledges that
upon the appointment of a successor Indenture Trustee pursuant to 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 as a
condition of its appointment as successor Indenture Trustee.
Section 10. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 9(b) or
the resignation or removal of the Administrator pursuant to Section 9(b) or
9(c), respectively, the Administrator shall be entitled to 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 Master Servicer 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 9(b), (c) or
(d), respectively; and the Administrator shall cooperate with the Issuer and the
Master Servicer 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
c/o Wilmington Trust Company, as Owner Trustee, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department
(with a copy to the Master Servicer and the Administrator); (b) if to the Master
Servicer, to 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxxx, Esq. and Xxxxxx Xxxxx (with a copy to the Transferor and to Xxxxx
Xxxxxx, Xxxx Xxxxxxx and Xxxx Xxxxxxx, Esq., 00000 Xxxxxxx Xxxx., Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000); (c) if to the Administrator, to 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (with a copy to the Indenture Trustee at Xxxxx
Fargo Center, MAC # 9311-161, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services); and (d) as to each of the foregoing
Persons, at such other address as shall be designated by such Person in a
written notice to the other foregoing Persons. 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
the parties hereto (i) to cure any ambiguity, correct or supplement any
provision of this Agreement that may be inconsistent with any other provision of
this Agreement, add any provision that provides additional rights to the
Certificateholders or Noteholders or ensure that the Trust is not classified as
an association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, that (A) (i) such amendment will not, in
the good faith judgment of the parties thereto, materially and adversely affect
the interest of any Certificateholder or Noteholder and (ii) an Opinion of
Counsel is delivered to the effect that such amendment will not materially and
adversely affect the interest of any Certificateholder or Noteholder or (B) to
the extent affected thereby, with the consent of the Holders of Notes evidencing
not less than a majority of the Note Balance of the Notes and, to the extent
affected thereby, the consent of the Holders of Certificates evidencing not less
than a majority of the Percentage Interests of the Certificates 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 Certificateholders; provided 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 Mortgage Loans 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 Note Balance of
the Notes and the Percentage Interests of the Certificates required to consent
to any such amendment, without the consent of the Holders of all the outstanding
Notes and Holders of all outstanding Certificates.
Promptly after the execution of any such amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Indenture Trustee. It
shall not be necessary for the consent of the Certificateholder or Noteholder
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 the Certificateholder or Noteholders provided for in this Agreement
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by the Certificateholder or Noteholders shall be subject to
such reasonable requirements as the Owner Trustee or Indenture Trustee may
prescribe from time to time.
Section 13. SUCCESSOR AND ASSIGNS. This Agreement may not be assigned by
the Administrator. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of any Person to a Person that is a
successor by merger, consolidation or purchase of assets to the Administrator,
provided that such successor executes and delivers to the other parties hereto
an agreement in which such successor agrees to be bound hereunder by the terms
of such assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any permitted 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, 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 are 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 any number of
counterparts, each of which when so executed shall together constitute but one
and the same instrument.
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. 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, 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 Trust Agreement.
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 Securityholders and the Owner Trustee 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 other parties 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, 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; 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, cause the Trust to make any general
assignment for the benefit of its creditors or otherwise take any action in
furtherance of any of the above actions.
IN WITNESS WHEREOF, the Master Servicer, the Issuer and the Indenture
Trustee have caused this Agreement to be duly executed by their respective
officers or representatives as of the date and year first above written.
XXXXX HOME EQUITY LOAN TRUST 2001-2,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: __________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Indenture Trustee
By: __________________________________
Name:
Title:
XXXXX UNION BANK AND TRUST COMPANY,
as Master Servicer
By: __________________________________
Name:
Title:
