EXHIBIT 4.5
===============================================================================
COUNTRYWIDE HOME LOANS, INC.
Administrator
CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 200_-_
Trust
-----------------------
Indenture Trustee
--------------------------------------------
ADMINISTRATION AGREEMENT
Dated as of __________, 200_
--------------------------------------------
REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES,
SERIES 200_-_
===============================================================================
Table of Contents
SECTION 1 DEFINITIONS AND RULES OF CONSTRUCTION..............................1
SECTION 2 DUTIES OF ADMINISTRATOR............................................1
SECTION 3 COMPENSATION AND INDEMNITY.........................................4
SECTION 4 INDEPENDENCE OF ADMINISTRATOR......................................5
SECTION 5 NO JOINT VENTURE...................................................5
SECTION 6 OTHER ACTIVITIES OF ADMINISTRATOR..................................5
SECTION 7 TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR........5
SECTION 8 ACTION UPON TERMINATION, RESIGNATION, OR REMOVAL.................. 6
SECTION 9 NOTICES........................................................... 6
SECTION 10 PAYMENT AND INDEMNITY OF THE INDENTURE TRUSTEE.....................7
SECTION 11. AMENDMENTS........................................................7
SECTION 12 SUCCESSORS AND ASSIGNS............................................8
SECTION 13 GOVERNING LAW.....................................................8
SECTION 14 HEADINGS..........................................................8
SECTION 15 COUNTERPARTS......................................................8
SECTION 16 SEVERABILITY......................................................8
SECTION 17 NOT APPLICABLE TO COUNTRYWIDE HOME LOANS, INC.
IN OTHER CAPACITIES...............................................8
SECTION 18 LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE....8
SECTION 19 LIMITATION OF LIABILITY OF ADMINISTRATOR AND STANDARD OF CARE.....9
SECTION 20 THIRD-PARTY BENEFICIARY...........................................9
THIS ADMINISTRATION AGREEMENT, dated as of ________, 200_ (the
"Agreement"), among COUNTRYWIDE HOME LOANS, INC., a New York corporation (the
"Administrator"), CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 200_-_, a
Delaware statutory trust (the "Trust") and _____________________ (the
"Indenture Trustee"),
WITNESSETH:
WHEREAS, the Trust was created pursuant to the Trust Agreement; and
WHEREAS, the Trust is issuing Notes pursuant to the Indenture of even
date with this Agreement ("Indenture") among the Trust, the Indenture Trustee
and _____________________, as Co-Trustee (the "Co-Trustee") and is issuing
Certificates pursuant to the Trust Agreement; and
WHEREAS, pursuant to the Indenture, the Sale and Servicing Agreement,
and the Trust Agreement (the "Related Agreements"), the Trust, the Owner
Trustee, and the Indenture Trustee are required to perform certain duties
referred to in the Related Agreements; and
WHEREAS, the Trust and the Indenture Trustee want to appoint the
Administrator to perform those duties and to provide certain additional
services that the Trust, the Owner Trustee, or the Indenture Trustee and the
Administrator may agree to;
NOW, THEREFORE, the parties agree as follows.
Section 1. Definitions and Rules of Construction.
Capitalized terms used in this Agreement that are not otherwise
defined have the meanings given to them in the Indenture, and if not defined
there, in the Sale and Servicing Agreement. In addition, Section 1.04 (Rules
of Construction) of the Indenture is incorporated by reference with
appropriate substitution of this Agreement for references in that Section to
the Indenture so that the language of that Section will read appropriately as
applying to this Agreement. "Trust Agreement" means the Trust Agreement, dated
as of ________, 200_, among the Master Servicer, the Depositor and the Owner
Trustee.
Section 2. Duties of Administrator.
(a) Duties Regarding Related Agreements. The Administrator agrees to
perform all of the following duties of the Trust and the Owner Trustee under
the Related Agreements:
(i) determine on behalf of the Trust whether any conditions
precedent to the conveyance of the Mortgage Loans, the issuance of
the Notes, or any other action under the Related Agreements has been
satisfied;
(ii) deliver Notes executed by the Trust to the Indenture
Trustee for authentication and delivery under Section 2.02 of the
Indenture;
(iii) deliver definitive Notes to the Indenture Trustee for
authentication under Section 2.10 of the Indenture pursuant to
written instructions of the Trust;
(iv) cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee the
instrument specified in Section 3.03 of the Indenture regarding funds
held in trust;
(v) whenever the Trust has appointed a Paying Agent other
than the Indenture Trustee, direct the Indenture Trustee to deposit
with that Paying Agent, not later than each Payment Date, an
aggregate sum sufficient to pay the amounts then becoming due under
Section 3.01 of the Indenture;
(vi) take all appropriate action on behalf of the Trust
regarding preservation of the Trust's qualification to do business in
each jurisdiction in which qualification to do business is necessary
to protect the validity and enforceability of the Indenture, the
Notes, the Collateral, and each other material agreement of the
Trust;
(vii) take all appropriate action on behalf of the Trust
regarding the preparation or review of supplements and amendments to
the Indenture, Financing Statements, Continuation Statements,
instruments of further assurance, and other instruments relating to
the Collateral under Section 3.05 of the Indenture;
(viii) on receipt, pursuant to Section 3.07(b) of the
Indenture, of an Officer's Certificate designating a person with whom
the Trust has contracted to perform its duties under the Indenture,
promptly deliver notice of that designation to the Indenture Trustee;
(ix) coordinate delivery of the Officer's Certificate,
Opinion of Counsel, Independent Certificates, and other documents
that may be required for the release of the Collateral under Section
4.04 of the Indenture in accordance with written instructions of the
Trust;
(x) deliver written notice of an Incipient Default, pursuant
to Section 5.01 of the Indenture to the Indenture Trustee promptly
upon receipt of written notice of its occurrence;
(xi) furnish to the Indenture Trustee the names and
addresses of Noteholders under Section 7.01 of the Indenture when the
Indenture Trustee is not the Note Registrar;
(xii) perform the obligations of the Issuer under Section
7.03 of the Indenture;
(xiii) mail notice of a supplemental indenture to the
Noteholders whenever a copy of one is received;
(xiv) deliver to the Indenture Trustee notice of any
agreements regarding alternative payment and notice provisions under
Section 11.06 of the Indenture; and
(xv) effect the filings required of it under Section 3.13 of
the Sale and Servicing Agreement.
2
In furtherance of the foregoing, the Administrator shall consult with
the Owner Trustee as the Administrator deems appropriate regarding the duties
of the Trust and the Owner Trustee under the Related Agreements. The
Administrator shall monitor the performance of the Trust and the Owner Trustee
and shall perform any action necessary to comply with the Trust's or the Owner
Trustee's duties under the Related Agreements, unless it is instructed
otherwise by the Owner Trustee. The Administrator shall prepare for execution
by the Owner Trustee all documents, reports, filings, instruments,
certificates, and opinions that the Trust or the Owner Trustee is required to
prepare, file, or deliver pursuant to the Related Agreements.
(b) Additional Duties.
(i) The Administrator shall cooperate with any firm of
independent public accountants engaged by the Trust.
(ii) In carrying out any of its other obligations under this
Agreement, the Administrator may use any of its affiliates, so long
as the terms of their engagement are consistent with any written
directions of the Trust and are, in the Administrator's opinion, no
less favorable to the Trust than terms of engagement that would be
available from unaffiliated parties. If reasonably necessary to carry
out duties or other obligations contemplated by this Agreement, the
Administrator may engage counsel, agents, or attorneys-in-fact. The
Administrator shall be not responsible for the acts or omissions of
any counsel, agents, or attorneys-in-fact that were selected with
reasonable care.
(iii) In addition to the above duties of the Administrator, the
Administrator shall perform such calculations and shall prepare for
execution by the Trust or the Owner Trustee all documents, reports,
filings, instruments, certificates, and opinions that the Trust or
the Owner Trustee is required to prepare, file, or deliver pursuant
to state and federal tax and securities laws.
(iv) The Administrator shall furnish to the Owner Trustee any
additional information regarding the Trust or the Related Agreements
the Owner Trustee reasonably requests.
(v) The Administrator agrees to perform the obligations imposed
on the "Administrator" under the Trust Agreement.
(vi) The Administrator shall prepare and deliver the Officer's
Certificate pursuant to Section 3.09 of the Indenture.
(c) Non-Ministerial Matters.
3
(i) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not take any action on the following matters
without prior written instructions from the Trust (or the consent of
the Owner Trustee):
(1) approve any amendment or any supplement to the
Indenture;
(2) initiate any claim or lawsuit by the Trust or approve
the compromise of any action, claim, or lawsuit brought by or against
the Trust (other than in collecting the Collateral);
(3) change in any way the Related Agreements;
(4) appoint successor Note Registrars, successor Paying
Agents, or successor Indenture Trustees pursuant to the Indenture, or
appoint successor Administrators or successor Master Servicers under
the Sale and Servicing Agreement, or consent to the assignment by the
Note Registrar, Paying Agent, or Indenture Trustee of its obligations
under the Indenture; or
(5) remove the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to take any action that the
Trust directs the Administrator in writing not to take.
(d) Records. The Administrator shall maintain appropriate books of
account and records as required by law or the Related Agreements relating to
the Trust and relating to the Administrator's services performed under this
Agreement. These books of account and records shall be accessible for
inspection on written request by the Trust or the Owner Trustee at any time
during normal business hours.
Section 3. Compensation and Indemnity.
(a) As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses related
to this Agreement, the Administrator shall be entitled to $[200] per month
which shall be solely an obligation of the Trust. The Administrator may, with
prior written notice to the Trust, the Transferor, the Master Servicer, the
Indenture Trustee, and the Owner Trustee, waive its rights to compensation
under this Agreement and Countrywide Home Loans, Inc., as the initial
Administrator, hereby gives written notice to the Trust, the Transferor, the
Master Servicer, the Indenture Trustee, and the Owner Trustee that until
further written notice to the contrary, Countrywide Home Loans, Inc. waives
its right to receive compensation under this Agreement.
(b) The Trust shall indemnify the Administrator, its affiliates,
officers, directors, shareholders, agents, and employees against expenses,
losses, damages, liabilities, demands, charges, and claims of any nature
(including the reasonable fees and expenses of counsel and other experts)
arising from any acts or omissions performed or omitted by the Administrator,
its
4
affiliates, directors, officers, shareholders, agents, or employees in
good faith in its capacity as Administrator under this Agreement and without
willful misfeasance, negligence, or reckless disregard of its duties under
this Agreement.
(c) The Administrator shall indemnify the Owner Trustee, its
affiliates, officers, directors, shareholders, agents, and employees against
any losses, liabilities, or expenses incurred without negligence or bad faith
on their part, arising out of or in connection with the Administrator's
acceptance or administration of the transactions contemplated by this
Agreement or the Related Agreements or the failure by the Administrator to
perform its obligations in accordance with this Agreement or the Related
Agreements, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the performance
of the Administrator under this Agreement.
Section 4. Independence of Administrator.
For all purposes of this Agreement, the Administrator is an
independent contractor and is not subject to the supervision of the Trust or
the Owner Trustee as to the manner in which it performs its obligations under
this Agreement. Unless expressly authorized in this Agreement or by the Trust,
the Administrator has no authority to act for or represent the Trust or the
Owner Trustee in any way and is not otherwise an agent of the Trust or the
Owner Trustee.
Section 5. No Joint Venture.
Nothing contained in this Agreement (i) shall constitute the
Administrator and either of the Trust 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 confer on any of them any express,
implied, or apparent authority to incur any obligation or liability on behalf
of the others.
Section 6. Other Activities of Administrator.
Nothing in this Agreement 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 that person or entity may engage in business activities
similar to those of the Trust, the Owner Trustee, or the Indenture Trustee.
Section 7. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force until the termination of
the Sale and Servicing Agreement, when this Agreement shall automatically
terminate.
(b) Subject to Section 7(e), the Administrator may resign under this
Agreement on sixty days written notice to the Trust.
(c) Subject to Section 7(e), the Trust may remove the Administrator
without cause on sixty days written notice to the Administrator.
5
(d) Subject to Section 7(e), at the sole option of the Trust, the
Administrator may be removed immediately on written notice of termination from
the Trust to the Administrator if any of the following events occur:
(i) the Administrator defaults in the performance of any of
its duties under this Agreement and, within ten days after notice of
the default, either (A) fails to cure it or (B) if the default cannot
be cured in that time period, fails to give any assurance of cure
that is reasonably satisfactory to the Trust; or
(ii) an Insolvency Event occurs with respect to the
Administrator.
If an Insolvency Event occurs, the Administrator shall notify the
Trust and the Indenture Trustee of the event within seven days after its
occurrence.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator has been
appointed by the Trust and (ii) the successor Administrator has assumed all
the obligations of the Administrator under this Agreement. The Trust shall use
reasonable efforts to appoint a successor Administrator promptly following any
resignation or removal. The appointment of any successor Administrator shall
be effective only after satisfaction of the Rating Agency Condition regarding
the proposed appointment.
(f) The Owner Trustee shall not be required to assume the duties of
the Administrator under this Agreement or under the other Related Agreements.
Section 8. Action upon Termination, Resignation, or Removal.
Promptly on the effective date of termination of this Agreement or
the resignation or removal of the Administrator pursuant to Section 7, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it until the date of termination, resignation, or removal. When
this Agreement terminates pursuant to Section 7, the Administrator shall
forthwith deliver to the Trust all property and documents relating to the
Collateral then in the custody of the Administrator. Upon the resignation or
removal of the Administrator pursuant to Section 7, the Administrator shall
cooperate with the Trust and take all reasonable steps requested to assist the
Trust in making an orderly transfer of the duties of the Administrator.
Section 9. Notices.
All notices, demands, instructions, consents, and other
communications required or permitted under this Agreement shall be in writing
and signed by the party giving the same and shall be personally delivered or
sent by first class or express mail (postage prepaid), national overnight
courier service, or by facsimile transmission or other electronic
communication device capable of transmitting or creating a written record
(confirmed by first class mail) and shall be considered to be given for
purposes of this Agreement on the day that the writing is
6
delivered when personally delivered or sent by facsimile or overnight
courier or three Business Days after it was sent to its intended recipient if
sent by first class mail. A facsimile has been delivered when the sending
machine issues an electronic confirmation of transmission. Unless otherwise
specified in a notice sent or delivered in accordance with the provisions of
this Section, notices, demands, instructions, consents, and other
communications in writing shall be given to or made on the respective parties
at their addresses indicated in Related Documents (in the case of the initial
Administrator, its address is the same as the address of the Master Servicer)
or to any other address any party provides to the other parties in writing.
Section 10. Payment and Indemnity of the Indenture Trustee.
The Master Servicer has agreed to pay the Indenture Trustee fees for
its services as indenture trustee and to reimburse the Indenture Trustee for
expenses pursuant to a separate agreement with the Indenture Trustee. The
Master Servicer agrees to indemnify the Indenture Trustee and the Co-Trustee
and their respective officers, directors, employees, and agents against any
loss, liability, or expense (including reasonable attorneys' fees and
expenses) incurred by it in connection with the administration of this trust
not attributable to its negligence or bad faith.
The Indenture Trustee shall notify the Master Servicer promptly of
any claim for which it or the Co-Trustee may seek indemnity. Failure by the
Indenture Trustee to so notify the Master Servicer shall not relieve the
Master Servicer of its obligations under this Section except to the extent the
Master Servicer is prejudiced by the failure. The Master Servicer will be
entitled to participate in any indemnifiable claim and to assume its defense
with counsel reasonably satisfactory to the Indenture Trustee. After the
Master Servicer notifies the Indenture Trustee of its election to assume the
defense of the indemnifiable claim, the Master Servicer will not be liable for
any further legal expenses of the Indenture Trustee other than reasonable
costs of investigation, except that the Indenture Trustee or the Co-Trustee,
as applicable, may have separate counsel and the Master Servicer shall pay its
fees and expenses if the Master Servicer is also a named party in the
proceeding and representation of both parties by the same counsel would be
inappropriate because of differing interests between them. After the notice
from the Master Servicer to the Indenture Trustee, the Master Servicer will
not be liable for the costs of any settlement of the action effected by the
Indenture Trustee or the Co-Trustee, as applicable, without the consent of the
Master Servicer. The Master Servicer's payment obligations to the Indenture
Trustee or the Co-Trustee, as applicable, pursuant to this Section shall
survive the termination of this Agreement or the earlier resignation or
discharge of the Indenture Trustee or the Co-Trustee, as applicable.
Section 11. Amendments.
This Agreement may be amended from time to time by the Trust and the
Administrator, with the consent of the Owner Trustee and the Indenture
Trustee, if the Rating Agency Condition is satisfied. This Agreement may also
be amended from time to time by the Trust and
7
the Administrator, with the consent of the Owner Trustee, the Indenture
Trustee, and Holders of not less than 66(2)/3% of the aggregate Outstanding
Amount of the Notes.
Section 12. Successors and Assigns.
This Agreement may not be assigned by the Administrator unless the
Trust and the Indenture Trustee consent to the assignment in writing and the
Rating Agency Condition has been satisfied. An assignment satisfying the
conditions in the preceding sentence shall, if accepted by the assignee under
this Agreement, bind that assignee in the same manner as the Administrator is
bound under this Agreement. Notwithstanding the foregoing, this Agreement may
be assigned by the Administrator without the consent of the Trust or the
Indenture Trustee to a corporation or other organization that is a successor
(by merger, consolidation, or purchase of assets) to the Administrator if the
Rating Agency Condition is satisfied and the successor organization executes
and delivers to the Trust, the Owner Trustee, and the Indenture Trustee an
agreement in which that organization agrees to be bound under this Agreement
in the same manner as the Administrator is bound under this Agreement. Subject
to the foregoing, this Agreement shall bind any successors or assigns of the
parties hereto.
Section 13. 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 PROVISIONS
THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 14. Headings.
The section headings of this Agreement have been inserted for
convenience of reference only and shall not be construed to affect this
Agreement.
Section 15. Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall together constitute but one agreement.
Section 16. Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall be ineffective to the extent of that prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement. Any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable that provision in any other
jurisdiction.
Section 17. Not Applicable to Countrywide Home Loans, Inc. in Other
Capacities.
Nothing in this Agreement shall affect any obligation Countrywide
Home Loans, Inc. may have in any other capacity under the Related Agreements.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained in this Agreement to the
contrary, this instrument has been executed by Wilmington Trust Company, not
in its individual capacity but
8
solely in its capacity as Owner Trustee of the Trust. Neither in its
individual capacity, nor any beneficial owner of the Trust will have any
liability for the representations, warranties, covenants, agreements, or other
obligations of the Trust or the Owner Trustee under this Agreement, as to all
of which recourse shall be had solely to the assets of the Trust. For all
purposes of this Agreement, in the performance of any obligations of the Trust
under this Agreement, the Owner Trustee shall be subject to, and entitled to
the benefits of the Trust Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, this Agreement has been executed by _____________________, not in
its individual capacity but solely as Indenture Trustee, and shall not have
any liability for the representations, warranties, covenants, agreements, or
other obligations of the Trust under this Agreement or in any of the
certificates, notices, or agreements delivered pursuant to this Agreement, as
to all of which recourse shall be had solely to the assets of the Trust.
Section 19. Limitation of Liability of Administrator and Standard of
Care.
(a) The Administrator will have no responsibility under this
Agreement other than to render the services called for under this Agreement in
good faith and without willful misfeasance, gross negligence, or reckless
disregard of its duties under this Agreement. The Administrator shall incur no
liability to anyone in acting on any signature, instrument, statement, notice,
resolution, request, direction, consent, order, certificate, report, opinion,
bond, or other document reasonably believed by it to be genuine and reasonably
believed by it to be signed by the proper parties. Neither the Administrator
nor any of its affiliates, directors, officers, shareholders, agents, or
employees will be liable under this Agreement to the Trust, the Owner Trustee,
the Indenture Trustee, the Master Servicer, the Transferor, or others, except
for acts or omissions constituting bad faith, willful misfeasance, gross
negligence, or reckless disregard of the Administrator's duties under this
Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, this Agreement has been executed by Countrywide Home Loans, Inc., as
Administrator (and for Section 10, as the Master Servicer). Countrywide Home
Loans, Inc. shall not have any liability in its individual or any other
capacity for the representations, warranties, covenants, agreements, or other
obligations of the Trust or any other party to this Agreement or in any of the
Related Agreements.
Section 20. Third-Party Beneficiary.
The Owner Trustee is a third-party beneficiary to this Agreement and
is entitled to the rights and benefits under this Agreement and may enforce
the provisions of this Agreement as if it were a party to this Agreement.
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 200_-_
By: _____________________,
not in its individual capacity, but
solely as Owner Trustee
By: ________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: _________________________________
Name:
Title:
______________________________________
not in its individual capacity, but
solely as Indenture Trustee
By: _________________________________
Name:
Title:
EXHIBIT A
POWER OF ATTORNEY
STATE OF }
}
COUNTY OF }
KNOW YE ALL MEN BY THESE PRESENTS, that CWHEQ Revolving Home Equity
Loan Trust, Series 200_-_, a Delaware statutory trust (the "Trust"), appoints
Countrywide Home Loans, Inc. (the administrator under the Administration
Agreement, dated as of ________, 200_ (the "Administration Agreement"), among
the Trust, the Indenture Trustee, and the Administrator) and its agents and
attorneys as Attorneys-in-Fact to act on behalf of the Trust as set forth in
the Administration Agreement.
All powers of attorney for this purpose previously filed or executed
by the Trust are revoked.
EXECUTED this ____ day of ______, 200_.
CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 200_-_
By: _____________________
not in its individual capacity, but
solely as Owner Trustee
By: __________________________________
Name:
Title:
STATE OF }
}
COUNTY OF }
Before me, the undersigned authority, on this day personally appeared
_________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and he/she acknowledged to me that
he/she signed the same for the purposes and considerations expressed in it.
Sworn to before me this ___
day of _______, 200_
_____________________________________
Notary Public - State of ____________