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 [ ], 2003 (the "Standard Terms"), between the
Depositor and the Trustee, as supplemented and amended by the Series 2003-[ ]
Series Supplement, dated as of [ ], 2003 (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):
(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:
[(A) the amendment of or any supplement to
the Trust Agreement;]
(B) 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;
[(C) 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
[(D) the removal of the Trustee.]
(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.
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 an 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;
(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. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
15. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
[NAME OF TRUSTEE], as Trustee
By: ___________________________________
Name:
Title:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By: ___________________________________
Name:
Title:
BOND PRODUCTS DEPOSITOR LLC, as Depositor
By: ___________________________________
Name:
Title:
