EXHIBIT 4.4
ADMINISTRATION AGREEMENT
between
AEGIS ASSET BACKED SECURITIES CORPORATION
[ ] TRUST [ ]
Issuer
and
[ ],
Administrator
Dated as of [ ]
TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator with Respect to the Note Depository Agreement, the
Sale and Collection Agreement, the Indenture, the Trust Agreement and the
Custodial Agreement...........................................................2
Section 2. Records.......................................................................7
Section 3. Compensation..................................................................8
Section 4. Additional Information to be Furnished to the Issuer..........................8
Section 5. Independence of the Administrator.............................................8
Section 6. No Joint Venture..............................................................8
Section 7. Other Activities of Administrator.............................................8
Section 8. Term of Agreement; Resignation and Removal of Administrator...................8
Section 9. Action upon Termination, Resignation or Removal of the Administrator..........10
Section 10. Notices.......................................................................10
Section 11. Amendments....................................................................10
Section 12. Successors and Assigns........................................................11
Section 13. Governing Law.................................................................11
Section 14. Headings......................................................................11
Section 15. Counterparts..................................................................11
Section 16. Severability..................................................................11
Section 17. Limitation of Liability of Owner Trustee......................................11
Section 18. Limitation on Liability of the Administrator..................................12
Section 19. Benefit of Agreement..........................................................12
Section 20. Bankruptcy Matters............................................................12
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This Administration Agreement (the "Agreement") is entered into as of
[ ], between Aegis Asset Backed Securities Corporation [ ], a
[Delaware] business trust (the "Issuer") and [ ], a [national banking
association], not in its individual capacity but as administrator (the
"Administrator").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Indenture, the Trust Agreement, the Custodial
Agreement or the Sale and Collection Agreement (each as defined herein).
W I T N E S S E T H:
WHEREAS, the Issuer is a business trust under the Delaware Business
Trust Act (12 Del.C. Section 3801 et seq.) created by a Deposit Trust Agreement
relating to the Trust, dated as of [ ] (the "Trust Agreement"), between
Aegis Asset Backed Securities Corporation, as depositor (in such capacity, the
"Depositor") and [ ], as owner trustee (the "Owner Trustee");
WHEREAS, the Issuer will issue Notes and Certificates designated as
Aegis Asset Backed Securities Corporation [ ] Trust [ ],
Series [ ] (collectively, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture, dated as of [ ] (the "Indenture"),
between the Issuer and [ ], as indenture trustee (in such capacity, the
"Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust Agreement
and will represent the undivided beneficial ownership interest in the Trust;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Securities, including (i) a Sale and Collection
Agreement, dated as of [ ] (as amended and supplemented from time to time,
the "Sale and Collection Agreement"), among the Issuer, the Depositor, in its
capacity as Seller, the Indenture Trustee and [ ], as Administrator, (ii)
the Note Depository Agreement (as defined in the Indenture), (iii) the
Indenture, (iv) the Trust Agreement, and (v) the Custodial Agreement dated as of
[ ] (the "Custodial Agreement") among the Issuer, the Indenture Trustee,
the Servicer and [ ], as custodian (in such capacity the "Custodian")
(the Sale and Collection Agreement, the Note Depository Agreement, the
Indenture, the Trust Agreement and the Custodial Agreement being hereinafter
referred to collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with (a) the Notes and the Collateral
therefor pledged pursuant to the Indenture and (b) the beneficial ownership
interest in the Issuer represented by the Certificates;
WHEREAS, the Issuer desires to have the Administrator perform certain of
the duties of the Issuer referred to in the preceding clause, and to provide
such additional services consistent with the terms of this Agreement and the
Related Agreements as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the respective
services required hereby and is willing to perform such services for the Issuer
on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator with Respect to the Note
Depository Agreement, the Sale and Collection Agreement, the Indenture, the
Trust Agreement and the Custodial Agreement.
(a) The Administrator agrees to perform all of the duties of the
Issuer under the Note Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer under the
Indenture, to the extent that such consultation is, in the judgment of the
Administrator, necessary or appropriate to the performance by it of its
obligations hereunder. The Administrator shall advise the Owner Trustee when
action is necessary to comply with the Issuer's duties under the Indenture. The
Administrator shall prepare for execution by the Owner Trustee or shall cause
the preparation by the appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare pursuant to the Indenture, and the
Administrator shall take all appropriate action that is the duty of the Issuer
to take with respect to the following matters under the Indenture (references
are to sections of the Indenture):
(i) the preparation of the Notes for execution by the Owner
Trustee upon their issuance and upon the registration of any transfer or
exchange of the Notes (Sections [2.02, 2.03 and 2.04]);
(ii) the duty to cause the Note Register to be kept if the
Issuer assumes the duties of Note Registrar, and to give the Indenture
Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section [2.03]);
(iii) the preparation of an Issuer Order for authentication of
the Notes and delivery of the same to the Indenture Trustee (Section
[2.08]);
(iv) the preparation of an Issuer Request required for the
release of collateral and delivery of the same to the Indenture Trustee
and the preparation, obtaining or filing of the instruments, opinions,
certificates and other documents required for the release of collateral
(Section [2.09]);
(v) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency, the duty to attempt to locate a
qualified successor to the Clearing Agency, if necessary, and the
preparation of written notice to the Indenture Trustee of termination of
the book entry system through the Clearing Agency (Section [2.12]);
(vi) the maintenance of an office in [ ], for
registration of transfer or exchange of Notes (Section [3.02]);
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(vii) the preparation of an Issuer Order required to appoint a
Paying Agent, the preparation of written notice to the Indenture Trustee
[and the Note Insurer] of such appointment and the duty to cause newly
appointed Paying Agents, if any, to execute and deliver to the Indenture
Trustee the instrument specified in the Indenture regarding funds held
in trust (Section [3.03]);
(viii) the preparation of an Issuer Order required to direct
the Paying Agent to pay to the Indenture Trustee all sums held in trust
by the Paying Agent (Section [3.03]);
(ix) the provision to the Indenture Trustee of calculations
pertaining to original issue discount, if any, on the Notes and, if
applicable, the accrual of market discount or the amortization of
premium on the Notes to the extent that the Administrator has received
from [ ] sufficient information to calculate such amounts (Section
[3.03]);
(x) the preparation and execution of all supplements,
amendments, financing statements, continuation statements, instruments
of further assurance and other instruments, in accordance with Section
[3.05] of the Indenture, necessary to protect the Collateral (Section
[3.05]);
(xi) the annual delivery of Opinions of Counsel, in
accordance with Section [3.06] of the Indenture, as to the Trust Estate,
and the annual delivery of the Officers' Certificate and certain other
statements, in accordance with Section [3.09] of the Indenture, as to
compliance with the Indenture (Sections [3.06 and 3.09]);
(xii) the monitoring of the Issuer's compliance with its
negative covenants (Section [3.08]);
(xiii) upon written notice or actual knowledge thereof, the
delivery of notice to the Indenture Trustee [the Note Insurer] and the
Rating Agencies of each Event of Default under the Indenture (Section
[5.01]);
(xiv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture (Section [4.01]);
(xv) the preparation of an Officer's Certificate and the
obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto with respect to any request by the Issuer to the
Indenture Trustee to take any action under the Indenture (Sections [4.01
and 11.01]);
(xvi) the compliance with any directive of the Indenture
Trustee with respect to the preparation of documents in connection with
the sale of the Trust Estate in a commercially reasonable manner if an
Event of Default shall have occurred and be continuing under the
Indenture (Section [5.04]);
(xvii) the compliance with any directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing under the Indenture (Section [5.05]);
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(xviii) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section [7.01]);
(xix) the preparation and filing of all documents and reports
by the Issuer as required under the Exchange Act, the Rules and
Regulations of the Commission and the TIA (Section [7.03]);
(xx) the preparation of an Issuer Request and Officers'
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral, as
defined in the Indenture (Sections [8.05 and 8.06]);
(xxi) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and, if necessary, the mailing to the Noteholders of notices
with respect to their consent to such supplemental indentures (Sections
[9.01, 9.02 and 9.03]);
(xxii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to any proposed amendment of the Trust
Agreement or amendment to or waiver of any provision of any other
document relating to the Trust Agreement (Section [9.07]);
(xxiii) the notification of the Rating Agencies [and the Note
Insurer] of a redemption of the Notes (Section [10.01]);
(xxiv) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section [11.04]); and
(xxv) any other duties expressly required to be performed by
the Administrator under the Indenture.
(b) The Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the Sale and Collection
Agreement, to the extent that such consultation is, in the judgment of the
Administrator, necessary or appropriate to the performance by it of its
obligations hereunder. The Administrator shall advise the Owner Trustee when
action is necessary to comply with the Issuer's or the Owner Trustee's duties
under the Sale and Collection Agreement. The Administrator shall prepare for
execution by the Owner Trustee, or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Sale and Collection
Agreement, except as otherwise provided herein.
(c) The Administrator shall perform, or cause to be performed, such
duties and take, or cause to be taken, such actions, as are required to be
performed or taken with respect to the Trust under the Code, including the
duties and actions of the Owner Trustee under Section [5.05] of the Trust
Agreement. The Administrator shall prepare for signature by the Owner Trustee
and, upon obtaining such signature, shall file or cause to be filed with the
Internal Revenue
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Service federal tax or information returns with respect to the Trust and the
Securities containing such information and at the times and in such manner as
may be required by the Code or applicable Treasury regulations, and shall
furnish to Holders such statements or information at the times and in such
manner as may be required thereby; provided, however, that the Administrator
shall not be required to compute the Issuer's gross income; and PROVIDED,
FURTHER, that the Administrator shall not be required to prepare and file
partnership tax returns on behalf of the Issuer unless it receives an opinion of
counsel (which shall not be at the Administrator's expense, but shall be at the
expense of the Seller or other party furnishing such opinion) as to the
necessity of such filings. The Owner Trustee shall sign all tax information
returns filed pursuant to this Section.
(d) The Administrator shall timely file all reports required to be
filed by the Trust with any federal, state or local governmental authority
having jurisdiction over the Trust, including the Internal Revenue Service's
Form 1041 prepared for a grantor trust signed by the Owner Trustee, and
including any other reports that must be filed with the Securityholders.
Furthermore, the Administrator shall report to Holders, if required, with
respect to the allocation of expenses pursuant to Section 212 of the Code in
accordance with the specific instructions to the Administrator by the Seller
with respect to such allocation of expenses. Absent specific instructions, the
Administrator shall allocate expenses to Holders based on the right of each
Holder to gross stated interest on the Mortgage Loans. The Administrator shall
collect any forms or reports from the Holders determined by the Seller to be
required under applicable federal, state and local tax laws.
(e) Unless required otherwise by provisions of the Internal Revenue
Code or interpretations thereof, the Administrator shall treat the Trust as a
grantor trust and not as an association taxable as a corporation for federal
income tax purposes.
(f) The Administrator hereby accepts its appointment under Section
[3.05] of the Trust Agreement as Certificate Registrar and its appointment under
Section [3.10] of the Trust Agreement as Paying Agent. The Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or the Owner
Trustee under the Trust Agreement, to the extent that such consultation is, in
the judgment of the Administrator, necessary or appropriate to the performance
by it of its obligations hereunder. The Administrator shall advise the Owner
Trustee when action is necessary to comply with the Issuer's or the Owner
Trustee's duties under the Trust Agreement. The Administrator shall prepare for
execution by the Issuer, or shall cause the preparation by other appropriate
persons of, all such documents, reports, filings, tax returns, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Trust Agreement and shall
take all appropriate action that is the duty of the Issuer or the Owner Trustee
to take pursuant to the Trust Agreement, as required with respect to the
following matters under the Trust Agreement (references are to sections of the
Trust Agreement):
(i) the preparation of Definitive Certificates in accordance
with the instructions of the Clearing Agency, the duty to attempt to
locate a qualified successor to the Clearing Agency, if necessary, and
the preparation of written notice to the Owner Trustee of termination of
the book-entry system through the Clearing Agency (Section [3.13]);
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(ii) the preparation of Certificates for execution by the
Owner Trustee upon their issuance and upon the registration of any
transfer or exchange of the Certificates and delivery thereof (Sections
[3.02, 3.05, and 3.06]);
(iii) the duty to furnish a list of Certificateholders of
record (Section [3.08]);
(iv) the maintenance of an office in [ ], for
registration of transfer or exchange of Certificates (Section [3.09]);
(v) the duty to cause newly appointed Paying Agents, if any,
to deliver the instrument specified in the Trust Agreement regarding
funds held in the Certificate Distribution Account (Section [3.10]);
(vi) the delivery to the Owners of any documents furnished to
the Owner Trustee under the Related Agreements (Section [7.02]);
(vii) the duties required to be performed by the Administrator
in connection with the resignation or removal of the Owner Trustee
(Section [10.02]);
(viii) any other duties expressly required to be performed by
the Administrator under the Trust Agreement; and
(ix) the delivery to any Certificateholder and any
prospective transferee designated by any such Certificateholder of
information necessary to satisfy the condition of eligibility set forth
in Rule 144A under the Securities Act for transfer of any Certificate
(Section [3.04(b)]).
(g) The Administrator, to the extent of the Custodian's obligation
to do so pursuant to the Custodial Agreement, shall prepare for filing by the
Custodian or shall cause the preparation by other appropriate persons of any
federal and state income tax returns and information statements required to be
prepared and filed by the Custodian on behalf of the custodial arrangement as a
grantor trust, in compliance with the method of reporting required by Treasury
Regulation 1.67-4.
(h) In addition to the duties of the Administrator set forth above,
the Administrator, to the extent of the Issuer's obligation to do so, shall
prepare for execution by the Issuer or shall cause the preparation by other
appropriate persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Related Agreements, and at the request of the Owner
Trustee or the Custodian shall take all appropriate action that it is the duty
of the Issuer or the Custodian to take pursuant to the Related Agreements.
Subject to Section 4 of this Agreement, and in accordance with the directions of
the Owner Trustee [or the Note Insurer], the Administrator shall administer,
perform or supervise the performance of such other activities in connection with
the Trust Estate (including the Related Agreements) as are not covered by any of
the foregoing provisions and as are expressly requested by the Owner Trustee [or
the Note Insurer] and are reasonably within the capability of the Administrator.
The Administrator shall use the same degree of care and skill as is reasonably
expected of financial institutions acting in comparable capacities.
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With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not be obligated to
take any action, and in any event shall not take any action, unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee [and the Note Insurer] of the proposed action and the
Owner Trustee [and the Note Insurer] shall not have withheld consent or provided
an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation, (A) the amendment
of or any supplement to any of the Related Documents; (B) the initiation of any
claim or lawsuit by the Issuer, the Owner Trustee or the Custodian and the
compromise of any action, claim or lawsuit brought by or against the Issuer, the
Owner Trustee or the Custodian; (C) any involvement in any lawsuit or other
legal action against the Indenture Trustee or the Servicer, including without
limitation, consenting to the settlement of any third party claim by the
Indenture Trustee; (D) the removal of the Indenture Trustee or the appointment
of a successor Indenture Trustee pursuant to the Indenture; (E) the appointment
of a successor Servicer pursuant to the Servicing Agreement; (F) the removal of
the Owner Trustee; and (G) any action that the Issuer or the Owner Trustee is
entitled but not obligated to take under the Related Documents, provided that,
notwithstanding the foregoing, the Administrator may with the consent of the
Owner Trustee [and the Note Insurer] take any action with respect to
non-ministerial matters that the Administrator, in its good faith judgment,
deems to be in the best interests of the Issuer.
Notwithstanding anything to the contrary in this Agreement, (A) the
Administrator, in its individual capacity, shall not be responsible for any
payment obligation of the Issuer or the Owner Trustee and (B) the Administrator
shall not be obligated to, and shall not, take any action that the Owner Trustee
directs the Administrator not to take on its behalf or on behalf of the Issuer.
(i) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee in the event that any withholding tax is imposed on
the Trust's payments (or allocations of income) to an Owner as contemplated in
Section [5.02(c)] of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(j) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section [5.05(a),
(b), (c) and (d)] of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; PROVIDED, HOWEVER, that the Owner Trustee
shall retain responsibility for the distribution (with the Depositor's
cooperation) of any information necessary to enable each Owner to prepare its
federal and state income tax returns.
Section 2. Records.
The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer or the Indenture
Trustee at any time after reasonable notice during normal business hours.
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Section 3. Compensation.
The Administrator will perform the duties and provide the services
called for under Section 1 above without any separate compensation therefor for
so long as the Agency Agreement dated as of [ ] between the Administrator and
the Indenture Trustee remains in effect, and thereafter for such compensation as
shall be agreed upon between the Administrator and the Owner Trustee. The
Administrator shall perform any other services as may be agreed between the
Administrator and the Owner Trustee for such compensation as may be agreed
between the Administrator and the Owner Trustee. The Administrator agrees to
perform all its duties under this Agreement regardless of any non-payment of
fees or expenses by the Owner Trustee.
Section 4. Additional Information to be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Trust Estate as the Issuer shall reasonably
request.
Section 5. Independence of the Administrator.
For all purposes of this Agreement, the Administrator shall be an
independent contractor and shall not be subject to the supervision of the Issuer
or the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer or the Owner Trustee, as applicable, the Administrator shall have no
authority to act for or represent the Issuer or the Owner Trustee in any way and
shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
Section 6. No Joint Venture.
Nothing contained in this Agreement (i) shall constitute the
Administrator and either of the Issuer or the Owner Trustee as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (ii) shall be construed to impose any liability as such
on any of them or (iii) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
Section 7. Other Activities of Administrator.
Nothing herein shall prevent the Administrator or its Affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an administrator for any other person or entity even though
such person or entity may engage in business activities similar to those of the
Issuer or the Owner Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of
the Trust Agreement in accordance with its terms, upon which event this
Agreement shall automatically terminate.
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(b) Subject to Section 8(e) hereof, the Administrator may resign its
duties hereunder by providing the Issuer [and the Note Insurer] with at least 60
days' prior written notice.
(c) Subject to Section 8(e) hereof, the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice [with a copy to the Note Insurer].
(d) Subject to Section 8(e) hereof, the Issuer may remove the
Administrator immediately upon written notice of termination to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within 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 Issuer
and the Custodian, as applicable);
(ii) a court having jurisdiction in the premises shall (x)
enter a decree or order for relief, which decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (y) appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property,
or (z) order the winding-up or liquidation of the Administrator's
affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its property,
shall make any general assignment for the benefit of creditors or shall
fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section shall occur, it shall give written notice thereof
to the Issuer, the Note Insurer and the Indenture Trustee within seven days
after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until [(i) a successor Administrator reasonably
acceptable to the Note Insurer shall have been appointed by the Issuer and (ii)]
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
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Section 9. Action upon Termination, Resignation or Removal of the
Administrator.
Promptly upon the effective date of termination of this Agreement
pursuant to Section 8(a) hereof or the resignation or removal of the
Administrator pursuant to Section 8(b) or (c) hereof, respectively, the
Administrator shall be entitled to be paid all reimbursable expenses accruing to
it to the date of such termination, resignation or removal. The Administrator
shall forthwith upon such termination pursuant to Section 8(a) deliver to the
Issuer all property and documents of or relating to the Collateral then in the
custody of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b), (c) or (d), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
Section 10. Notices.
Any notice, report or other communication given hereunder shall be in
writing and addressed as follows:
(a) if to the Issuer, to:
Aegis Asset Backed Securities Corporation [ ] Trust [ ]
(b) if to the Administrator, to:
(c) [if to the Note Insurer, to:]
or to such other address as any party shall have provided to the other party in
writing. All notices required hereunder shall be deemed given when delivered to
the address of such party as provided above.
Section 11. Amendments.
This Agreement may be amended from time to time by the Issuer, [the Note
Insurer] and the Administrator without the consent of any of the
Securityholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provision herein that may be defective or inconsistent with any other provisions
herein or to conform the provisions hereof to those of the Offering Document or
the Related Documents, (iii) to obtain a rating for a Class of Securities from a
nationally recognized statistical rating organization, or (iv) to make any other
provisions with respect to matters or questions arising under this Agreement;
PROVIDED, HOWEVER, that no such amendment effected pursuant to clause (iv) of
this paragraph shall adversely affect in any material respect the interests of
any Holder not consenting thereto. Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Issuer may require an
Opinion of Counsel (in the case of clauses (i) and (ii), at the expense of the
Issuer, and otherwise at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder of Securities that are rated by either Rating Agency if the Issuer
receives written confirmation from such Rating Agency that such amendment will
not cause such Rating Agency to qualify, reduce or withdraw the then current
rating assigned to such Class of rated Securities.
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Section 12. Successors and Assigns.
This Agreement may not be assigned by the Administrator unless such
assignment is previously consented to in writing by the Owner Trustee, [the Note
Insurer] and the Rating Agency Condition in respect thereof has been satisfied.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Owner Trustee to a corporation
or other organization that is a successor (by merger, consolidation or purchase
of assets) to the Administrator, provided that such successor organization
executes and delivers to the Issuer and the Owner Trustee an agreement in which
such corporation or other organization agrees to be bound hereunder by the terms
of said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
Section 13. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 14. Headings.
The section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
Section 15. Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall together constitute one and the same agreement.
Section 16. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 17. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [ ] not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
[ ] in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled
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to the benefits of, the terms and provisions of Articles [Six, Seven and Eight]
of the Trust Agreement.
Section 18. Limitation on Liability of the Administrator.
The Administrator shall have no duties or obligations other than those
specifically set forth herein, and no further duties or obligations shall arise
by implication or otherwise. None of the Administrator or any director, officer,
employee or agent of the Administrator shall be under any liability for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; PROVIDED, HOWEVER, that this provision shall not protect the
Administrator against any liability which would otherwise be imposed by reason
of the Administrator's willful misconduct, bad faith or negligence in the
performance of its obligations or duties hereunder. The Administrator and any
director, officer, employee or agent of the Administrator may rely in good faith
on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The
Administrator shall be under no duty to inquire into or investigate the
validity, accuracy or content of such document, except in any circumstance in
which the Issuer would otherwise be required to make such inquiry or
investigation. No provision of this Agreement shall require the Administrator to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity is not reasonably
assured to it. [Aegis Asset Backed Securities Corporation] shall indemnify the
Administrator for and hold it harmless against any loss, liability or expense
arising out of or in connection with this Agreement and carrying out its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability, except in those cases where the Administrator has been
guilty of bad faith, negligence or willful misconduct. The foregoing
indemnification shall survive any termination of this Agreement or the
resignation or removal of the Administrator.
Section 19. [Benefit of Agreement.
It is expressly agreed that in performing its duties under this
Agreement, the Administrator will act for the benefit of the Note Insurer, the
holders of the Securities as well as for the benefit of the Trust, and that such
obligations on the part of the Administrator shall be enforceable at the
instance of the Indenture Trustee and the Trust. The parties hereto acknowledge
that the Note Insurer is an express third party beneficiary hereof entitled to
enforce any rights reserved to it as if it were actually a party hereto.]
Section 20. Bankruptcy Matters.
No party to this Agreement shall take any action to cause the Trust to
dissolve in whole or in part or file a voluntary petition or otherwise initiate
proceedings to have the Trust adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief of the Trust
as debtor under any applicable federal or state law relating to bankruptcy,
insolvency, or other relief for debtors with respect to the Trust; or seek or
consent to the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or other similar official) of the Trust or
of all or any substantial part of the properties and assets of
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the Trust, or cause the Trust to make any general assignment for the benefit of
creditors of the Trust, or take any action in furtherance of any of the above
actions.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
AEGIS ASSET BACKED SECURITIES
CORPORATION [ ] Trust [ ], as Issuer
By: [ ], not in its
individual capacity but solely as
Owner Trustee
By: ___________________________________
Name:
Title:
[ ],
as Administrator
By: __________________________________
Name:
Title:
Acknowledged and Agreed to:
[ ]
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title: