FORM OF ADMINISTRATION AGREEMENT among TBW MORTGAGE TRUST [ ], as Issuer, as Indenture Trustee, [ ], as Securities Administrator as Owner Trustee and TBALT CORP., as Depositor Dated as of [ ]
Exhibit
10.2
FORM
OF
among
TBW
MORTGAGE TRUST [ ],
as
Issuer,
[
],
as
Indenture Trustee,
[
],
as Securities Administrator
as Securities Administrator
[
],
as
Owner
Trustee
and
TBALT
CORP.,
as
Depositor
Dated
as
of [ ]
This
Administration Agreement (the “Agreement”) is entered into as of
[ ], among TBW MORTGAGE TRUST [
], a Delaware statutory trust (the “Issuer”), [ ], not
in its individual capacity but solely as indenture trustee (the “Indenture
Trustee”), [ ], not in its individual capacity but
solely as securities administrator (the “Securities Administrator”),
[ ], not in its individual capacity but solely as owner
trustee of the Issuer (the “Owner Trustee”), and TBALT CORP., as depositor (the
“Depositor”).
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Indenture, the Trust Agreement or the Transfer and Servicing Agreement
(each as defined herein).
WITNESSETH:
WHEREAS,
the Issuer is a statutory trust under the Delaware Statutory Trust Act (12
Del.C. § 3801 et seq.) created by a trust agreement relating to the Trust,
dated as of [ ], among the Depositor, the Owner Trustee
and the Securities Administrator (the “Trust Agreement”);
WHEREAS,
the Issuer will issue under an indenture its TBW Mortgage
Trust [ ] Mortgage-Backed Notes (the “Notes”) and, under
the Trust Agreement, the Ownership Certificate (the “Certificate” and
collectively with the Notes, the “Securities”);
WHEREAS,
the Notes will be secured by certain collateral, as more particularly set
forth
in the Indenture dated as of [ ] (the “Indenture”),
among the Issuer, the Securities Administrator and the Indenture
Trustee;
WHEREAS,
the Certificate 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 transfer and servicing agreement dated
as of
[ ] (the “Transfer and Servicing Agreement”), among the
Issuer, as issuer, the Depositor, as depositor, [▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
Mortgage Corp.], as seller and as [a] servicer (in such capacity, [the/a]
“Servicer”), [ ], as master servicer (in such capacity,
the “Master Servicer”), and as Securities Administrator[,
[ ], as a servicer (in such capacity, a “Servicer”)] and
the Indenture Trustee, (ii) the Letter of Representations dated
[ ], between the Issuer and The Depository Trust Company
relating to the Notes (the “Depository Agreement”), (iii) [the interest rate cap
agreements dated as of [ ], between the Issuer and the
Cap Counterparty (the “Cap Agreements”)], and (iv) the Indenture (the Transfer
and Servicing Agreement, the Depository Agreement, the Indenture, [the 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 therefor pledged
pursuant to the Indenture (the “Collateral”) and (b) the undivided beneficial
ownership interest in the Issuer represented by the Certificate (the registered
holder of such interest being referred to herein as the
“Certificateholder”);
WHEREAS,
the Issuer desires to have the Securities Administrator and the Depositor,
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 or the Owner
Trustee may from time to time reasonably request; and
WHEREAS,
the Securities Administrator and the Depositor have the capacity to provide
the
respective services required hereby and are willing to perform such services
for
the Issuer or the Owner Trustee 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 Securities Administrator.
(a) [The
Securities Administrator agrees to perform all of the duties of the Issuer
under
the Depository Agreement. In addition, the Securities Administrator shall
take
all appropriate action that are the duties of the Issuer or the Owner Trustee
to
take with respect to the following matters under the Trust Agreement, the
Transfer and Servicing Agreement and the Indenture:
(i) 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 [2.04] of the Indenture);
(ii) the
duty
to cause the Certificate Register to be kept if the Issuer assumes the duties
of
the Certificate Registrar, and to give the Owner Trustee notice of any
appointment of a new Certificate Registrar and the location, or change in
location of the Certificate Register (Section [3.03] of the Trust Agreement);
(iii) causing
the preparation of Definitive Notes in accordance with the instructions of
any
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] of the Indenture);
(iv) the
maintenance of an office for registration of transfer or exchange of the
Notes
(Section [3.02] of the Indenture);
(v) the
maintenance of an office for registration of transfer or exchange of the
Ownership Certificate (Section [3.08] of the Trust Agreement);
(vi) the
preparation of an Issuer Order required to appoint a Paying Agent, the
preparation of written notice to the Indenture Trustee 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] of the Indenture);
2
(vii) 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]
of
the Indenture);
(viii) the
calculation of accrual of original issue discount, market discount, and the
amortization of premium on the Notes (Section [3.03(v)] of the
Indenture);
(ix) upon
receipt of written notice or actual knowledge thereof by a Responsible Officer
of the Securities Administrator, the notification to the Indenture Trustee
and
each Rating Agency of an Event of Default under the Transfer Servicing Agreement
(Section [3.07(d)] of the Indenture);
(x) upon
receipt of written notice or actual knowledge thereof by a Responsible Officer
of the Securities Administrator, the delivery of notice to the Indenture
Trustee
and each Rating Agency of each Event of Default under the Indenture and each
default by the Securities Administrator, the Master Servicer, the [related]
Servicer or the Depositor, as applicable, under the Transfer and Servicing
Agreement (Section [3.17] of the Indenture);
(xi) the
furnishing of the Indenture Trustee with the names and addresses of Holders
of
Notes during any period when the Indenture Trustee is not the Note Registrar
(Section [7.01] of the Indenture);
(xii) the
mailing to the Noteholders of notices with respect to their consent to any
supplemental indentures (Sections [9.01] and [9.02] of the Indenture);
and
(xiii) any
other
duties expressly required to be performed by the Securities Administrator
under
the Indenture or the Trust Agreement.]
(b) [The
Securities Administrator shall take all appropriate action with respect to
the
following matters under the Indenture:
(i) the
duties of an authenticating agent for authentication of the Notes (Sections
[2.01, 2.02, 2.05 and 2.10] of the Indenture);
(ii) the
duties of Note Registrar to be kept (Sections [2.03, 2.04 and 2.07] of the
Indenture);
(iii) to
provide notices and instructions to the Clearing Agency (Section [2.11] of
the
Indenture); and
(iv) the
duties of Paying Agent (Sections [3.03] and [4.02] of the
Indenture).]
(c) [The
Securities Administrator shall perform, or cause to be performed on behalf
of
the Issuer, any duties expressly required to be performed by it under the
Trust
Agreement, including its duties as Certificate Paying Agent and Certificate
Registrar.]
3
(d) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Securities 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 Securities
Administrator’s opinion, no less favorable to the Issuer than would be available
from unaffiliated parties.
In
carrying out the foregoing duties and its duties under any other Operative
Document, the Securities Administrator shall be subject to the same standard
of
care and have the same rights, indemnifications and immunities as the Indenture
Trustee under the Indenture, including, without limitation, the right to
reimbursement and indemnification. The Securities Administrator shall not
be
required to take notice or be deemed to have notice or knowledge of (a) any
Event of Default or Default under the Indenture or (b) any Event of Default
under the Transfer and Servicing Agreement, unless a Responsible Officer
of the
Securities Administrator assigned to and working in its corporate trust
department obtains actual knowledge of any such event or default or shall
have
received written notice thereof. In the absence of such actual knowledge
or
written notice, the Securities Administrator is entitled to conclusively
assume
that no such event or default has occurred. The Securities Administrator
shall
have no responsibility to prepare or file any tax return with respect to
the
Issuer, but shall, pursuant to Section [6.06] of the Indenture and Section
[2.11] of the Trust Agreement, deliver to each Noteholder such information
with
respect to the Notes as may be required to enable such holder to prepare
its
federal and state income tax returns and shall file such information returns
with the Internal Revenue Service with respect to payments or accruals of
interest on the Notes as are required to be filed under the Code or applicable
Treasury Regulations.
The
Securities Administrator in its capacity as the Certificate Registrar, and
upon
a request received from the Owner Trustee, shall promptly notify the
Certificateholder of (i) any change in the Corporate Trust Office of the
Owner
Trustee, (ii) any amendment to the Trust Agreement requiring notice be given
to
the Certificateholder and (iii) any other notice required to be given to
the
Certificateholder by the Owner Trustee under the Trust Agreement.
Section
2. Duties
of the Depositor With Respect to the Indenture.
(a) [The
Depositor shall take all appropriate action that is the duty of the Issuer
to
take with respect to the following matters under the Transfer and Servicing
Agreement and the Indenture (references are to sections of the
Indenture):
(i) The
Depositor shall consult with the Owner Trustee regarding the duties of the
Issuer under the Transfer and Servicing Agreement and the Indenture. The
Depositor shall monitor the performance of the Issuer and shall notify the
Owner
Trustee when action is necessary to comply with the Issuer’s duties under the
Transfer and Servicing Agreement and the Indenture;
(ii) causing
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, 2.04 and 2.05] of the Indenture);
4
(iii) causing
the preparation of an Issuer Order and related documents for authentication
of
the Notes, executing such Issuer Order on behalf of the Issuer and causing
delivery of the same to the Indenture Trustee (Section [2.02] of the
Indenture);
(iv) causing
the preparation of any financing statements, continuation statements,
instruments of further assurance and other instruments necessary to protect
the
Collateral (Section [3.05] of the Indenture);
(v) the
monitoring of the Issuer’s compliance with its negative covenants (Section
[3.08] of the Indenture);
(vi) the
preparation and execution of the annual Officer’s Certificate regarding the
Issuer’s compliance with the terms Indenture (Section [3.09] of the
Indenture);
(vii) the
delivery of notice to the Indenture Trustee and each Rating Agency of each
Event
of Default under the Indenture (Section [3.17] of the Indenture);
(viii) causing
the preparation of an Officer’s Certificate (and executing the same on behalf of
the Issuer) and the obtaining of the Opinion of Counsel 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] of the Indenture);
(ix) 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 [5.04]
of the
Indenture);
(x) causing
the preparation of an Issuer Request and Officer’s Certificate (and executing
the same on behalf of the Issuer) and the obtaining of an Opinion of Counsel,
if
necessary, for the release of the Collateral, as defined in the Indenture
(Section [8.04]);
(xi) causing
the preparation of Issuer Orders and Officer’s Certificate (and executing the
same on behalf of the Issuer) 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, 9.03 and 9.06] of the Indenture);
and
(xii) obtaining
and preserving the Issuer’s qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity
and
enforceability of the Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Trust Estate.]
(b) The
Issuer shall indemnify the Owner Trustee, the Indenture Trustee and the
Securities Administrator, and their respective agents for, and hold them
harmless against, any losses, liability or expense incurred without gross
negligence or bad faith on their part, arising out of or in connection with
the
acceptance or administration of the transactions contemplated by the Trust
Agreement or this Agreement, including the reasonable costs and expenses
of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the Trust
Agreement, the Indenture or this Agreement.
5
(c) [In
addition to the duties of the Depositor set forth above, the Depositor 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 additional action that it is the duty
of the
Issuer to take pursuant to the Related Agreements. Subject to Section 6 of
this
Agreement, and in accordance with the directions of the Owner Trustee, the
Depositor 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
Depositor.]
(d) [The
Securities Administrator shall enter into the Cap Agreements on behalf of
the
Issuer (Section [2.03(d)] of the Trust Agreement).]
Section
3. Duties
of the Indenture Trustee.
The
Issuer hereby authorizes the Indenture Trustee to file in any filing office
any
financing statement, amendment to financing statement (to the extent a
Responsible Officer of the Indenture Trustee has actual knowledge or receives
written notice that an amendment is required to be filed) or continuation
statement required to be executed pursuant to Section [3.05] of the Indenture;
and the Indenture Trustee agrees that it shall file any continuation statement
necessary to maintain the effectiveness of any financing statement filed
with
respect to the Collateral pursuant to the Indenture (provided that it has
been
furnished with a copy of the filed financing statement by the Issuer, Depositor
or Securities Administrator with the related filing information, including
the
date, location and filing number of the filed financing statement, on a timely
basis), and the Indenture Trustee agrees to file any amendment to any such
filed
financing statement to the extent a Responsible Officer of the Indenture
Trustee
receives written notice and instruction (including necessary information)
from
the Issuer, the Depositor or the Securities Administrator on a timely basis
that
such amendment is required to be filed. (Section [3.05] of the
Indenture).
Section
4. Records.
The
Securities 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 Depositor at any
time
during normal business hours.
Section
5. Compensation.
The
Securities Administrator shall perform the duties and provide the services
called for under Section 1 above for such compensation as shall be agreed
upon
between the Securities Administrator and the Master Servicer. [The fees and
disbursements of the attorneys delivering any Opinion of Counsel, and any
other
amounts of out-of-pocket expenses reasonably incurred by the Securities
Administrator pursuant to this Agreement shall be paid or reimbursed by the
Trust.]
6
Section
6. Additional
Information to be Furnished to the Issuer.
The
Depositor shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably
request.
Section
7. Independence
of the Securities Administrator.
For all
purposes of this Agreement, the Securities 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, the Securities 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
8. No
Joint Venture.
Nothing
contained in this Agreement (i) shall constitute the Securities Administrator
or
the Depositor, 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
9. Other
Activities of Securities Administrator and the Depositor.
Nothing
herein shall prevent the Securities Administrator, the Depositor or their
respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as a Securities 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
10. Term
of Agreement; Resignation and Removal of Securities
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 10(e) hereof, the Securities Administrator may resign its duties
hereunder by providing the Issuer with at least [60] days’ prior written
notice.
(c) Subject
to Section 10(e) hereof, the Issuer may remove the Securities Administrator
without cause by providing the Securities Administrator with at least [60]
days’
prior written notice.
(d) Subject
to Section 10(e) hereof, the Issuer may remove the Securities Administrator
immediately upon written notice of termination from the Issuer to the Securities
Administrator if any of the following events shall occur:
(i) [the
Securities 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); or
7
(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 Securities Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or (y) appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Securities Administrator or any
substantial part of its property, or (z) order the winding-up or liquidation
of
the Securities Administrator’s affairs; or
(iii) the
Securities 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, or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Securities 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
Securities Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 10(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within [seven ]days after
the
occurrence of such event.
(e) No
resignation or removal of the Securities Administrator pursuant to this Section
shall be effective until (i) a successor Securities Administrator shall have
been appointed by the Issuer in accordance with the Trust Agreement and (ii)
such successor Securities Administrator shall have agreed in writing to be
bound
by the terms of this Agreement in the same manner as the Securities
Administrator is bound hereunder.
If
a
successor Securities Administrator does not take office within [60] days
after
the retiring Securities Administrator resigns or is removed, the resigning
or
removed Securities Administrator or the Issuer may petition any court of
competent jurisdiction for the appointment of a successor Securities
Administrator.
(f) The
appointment of any successor Securities Administrator shall be effective
only
after receipt of a letter from each Rating Agency to the effect that such
proposed appointment will not cause a reduction or withdrawal of the then
current ratings of the Notes.
(g) Subject
to Sections 10(e) and 10(f), the Securities Administrator acknowledges that
upon
the appointment of a successor Master Servicer pursuant to Section [8.01]
of the
Transfer and Servicing Agreement, the Securities Administrator shall immediately
resign and such successor Master Servicer shall automatically become the
Securities Administrator under this Agreement. Any such successor Master
Servicer shall be required to agree to assume the duties of the Securities
Administrator under the terms and conditions of this Agreement in its acceptance
of appointment as successor Master Servicer.
Section
11. Action
upon Termination, Resignation or Removal of the Securities
Administrator.
Promptly upon the effective date of termination of this Agreement or the
resignation or removal of the Securities Administrator pursuant to Section
10
hereof, the Securities Administrator shall be entitled to be paid all fees
and
reimbursable expenses, including any reasonable out-of-pocket attorneys’ fees,
accruing to it to the date of such termination, resignation or removal. The
Securities Administrator shall forthwith upon such termination pursuant to
Section 10 deliver to the successor Securities Administrator all property
and
documents of or relating to the Collateral then in the custody of the Securities
Administrator, or if this Agreement has been terminated, to the Depositor.
In
the event of the resignation or removal of the Securities Administrator pursuant
to Section 10, the Securities 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 Securities Administrator.
8
Section
12. Notices.
Any
notice, report or other communication given hereunder shall be in writing,
delivered by mail, overnight courier or facsimile and addressed as
follows:
(a) if
to the
Issuer, to:
[TBW
Mortgage Trust [
]]
[
]
(b) if
to the
Securities Administrator, to:
[
]
[
]
(c) if
to the
Owner Trustee, to:
[
]
[
]
(d) if
to the
Depositor, to:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇.
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
Attention:
General Counsel
(e)
if
to the
Indenture Trustee, to:
[
]
[
]
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, hand delivered
or
faxed to the address of such party as provided above.
9
Section
13. Amendments.
(a) This
Agreement may be amended from time to time by the parties hereto, without
notice
to or the consent of any of the Holders, (i) to cure any ambiguity, (ii)
to
cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Securities, the Trust
or
this Agreement in any Offering Document, or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by
the
Code. No such amendment effected pursuant to clause (iii) of the preceding
sentence shall adversely affect in any material respect the interests of
any
Holder. Prior to entering into any amendment without the consent of Holders
pursuant to this paragraph, the Securities Administrator may require an Opinion
of Counsel (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 if the
Securities Administrator receives (i) written confirmation from the Rating
Agencies that such amendment will not cause the Rating Agencies to withdraw,
qualify or reduce the then current rating assigned to the Notes or (ii) an
Opinion of Counsel to such effect.
(b) [This
Agreement may also be amended from time to time by the parties hereto with
the
consent of the Holders of not less than 66-2/3% of the Class Principal Amount
(or Class Notional Amount) of each Class of Notes and the consent of the
Holder
of the Ownership Certificate 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 Holders; 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 payments on the Collateral
or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (ii) reduce the aforesaid
percentage of the Class Principal Amount (or Class Notional Amount) of the
Notes
of any Class required to consent to any such amendment, in the case of
clause (i) without the consent of the holders of all the outstanding Notes
and the Certificate, and in the case of clause (ii) without the consent of
the
holders of all the outstanding Notes. For purposes of this paragraph, references
to “Holder” or “Holders” shall be deemed to include, in the case of Book-Entry
Notes, the related Note Owners.]
(c) Promptly
after the execution of any such amendment, the Securities Administrator shall
furnish a copy of such amendment to each Holder, the Depositor and to each
Rating Agency.
(d) It
shall
not be necessary for the consent of Holders under this Section 12 to approve
the
particular form of any proposed amendment, but it shall be sufficient if
such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Securities Administrator
may prescribe.
10
(e) The
Owner
Trustee and the Securities Administrator may, but shall not be obligated
to,
enter into any amendment which affects the Owner Trustee’s or the Securities
Administrator’s rights, duties or immunities under this Agreement or
otherwise.
Section
14. Successors
and Assigns.
This
Agreement may not be assigned by the Securities Administrator unless such
assignment is previously consented to in writing by the Owner Trustee and
the
Depositor, 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 Securities
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Securities Administrator without the consent of the
Owner
Trustee or the Depositor to a corporation or other organization that is a
successor (by merger, consolidation or purchase of assets) to the Securities
Administrator, provided that such successor organization executes and delivers
to the Issuer, the Owner 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 Securities Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any successors
or
assigns of the parties hereto.
Section
15. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
16. 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.
Section
17. Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed
shall
together constitute one and the same agreement.
Section
18. 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
19. Not
Applicable to [ ] in Other Capacities.
Nothing
in this Agreement shall affect any obligation [ ] may
have in any other capacity.
Section
20. Limitation
of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement
has
been executed 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 VI, VII and VIII of the Trust
Agreement.
11
Section
21. Limitation
of Liability of the Securities Administrator; Indemnification.
Notwithstanding anything herein to the contrary, this Agreement has been
signed
by [ ] not in its individual capacity but solely in its
capacity as Securities Administrator and in no event shall the Securities
Administrator in its individual capacity 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. The Securities Administrator shall not have any duties or
obligations other than those expressly set forth in this Agreement, and no
implied duties on its part shall be read into this Agreement. In acting as
Securities Administrator, [ ] shall be entitled to the
same benefits, rights, immunities, protections and rights to indemnification
as
are afforded to the Indenture Trustee under Article Six (including without
limitation Section [6.07]) of the Indenture.
Section
22. Benefit
of Agreement.
It is
expressly agreed that in performing its duties under this Agreement, the
Securities Administrator will act for the benefit of holders of the Securities
as well as for the benefit of the Issuer, and that such obligations on the
part
of the Securities Administrator shall be enforceable at the instance of the
Indenture Trustee and the Issuer.
Section
23. Bankruptcy
Matters.
No party
to this Agreement shall take any action to cause the Depositor or the Issuer
to
dissolve in whole or in part or file a voluntary petition or otherwise initiate
proceedings to have the Depositor or the Issuer adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Depositor or the Issuer, or file a petition seeking or consenting
to
reorganization or relief of the Depositor or the Issuer as debtor under any
applicable federal or state law relating to bankruptcy, insolvency, or other
relief for debtors with respect to the Depositor or the Issuer; or seek or
consent to the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or other similar official) of the Depositor
or the Issuer or of all or any substantial part of the properties and assets
of
the Depositor or the Issuer, or cause the Issuer to make any general assignment
for the benefit of creditors of the Depositor or the Issuer, or take any
action
in furtherance of any of the above actions.
12
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
| TBW MORTGAGE TRUST [ ] | ||
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not
in its individual capacity
but
solely as Owner Trustee
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Name: [
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Title:
[
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], not in its individual capacity but solely as Securities Administrator |
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Name: [
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Title:
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[
],
not in its individual capacity but solely as Owner Trustee |
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Name: [
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Title:
[
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as
Depositor
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Name: [
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Title:
[
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], not in its individual capacity but solely as Indenture Trustee |
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Name: [
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Title:
[
]
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