Exhibit 10.3
EXECUTION COPY
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ADMINISTRATION AGREEMENT
by and among
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely
as owner trustee of
M&I Auto Loan
Trust 2002-1
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
as Administrator
and
BANK ONE, NATIONAL ASSOCIATION
as Indenture Trustee
October 10, 2002
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2002-1 Administration Agreement
TABLE OF CONTENTS
Page
SECTION 1. Definitions and Usage ....................................................... 1
SECTION 2. Duties of the Administrator ................................................. 2
SECTION 3. Duties of the Owner Trustee ................................................. 9
SECTION 4. Records ..................................................................... 9
SECTION 5. Compensation ................................................................ 9
SECTION 6. Additional Information To Be Furnished to the Owner Trustee ................. 9
SECTION 7. Independence of the Administrator ........................................... 9
SECTION 8. No Joint Venture ............................................................ 10
SECTION 9. Other Activities of Administrator ........................................... 10
SECTION 10. Term of Agreement; Resignation and Removal of Administrator ................. 10
SECTION 11. Action upon Termination, Resignation or Removal ............................. 11
SECTION 12. Notices ..................................................................... 11
SECTION 13. Amendments .................................................................. 12
SECTION 14. Successors and Assigns ...................................................... 13
SECTION 15. Governing Law ............................................................... 13
SECTION 16. Headings .................................................................... 13
SECTION 17. Counterparts ................................................................ 13
SECTION 18. Severability ................................................................ 13
SECTION 19. Not Applicable to M&I Bank in Other Capacities .............................. 13
SECTION 20. Limitation of Liability of Owner Trustee and Indenture Trustee .............. 13
SECTION 21. Third-Party Beneficiary ..................................................... 14
SECTION 22. Nonpetition Covenants ....................................................... 14
-i- 2002-1 Administration Agreement
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 10, 2002 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as owner trustee of M&I Auto Loan Trust 2002-1, a
Delaware common law trust (the "Owner Trustee"), M&I ▇▇▇▇▇▇▇▇ & ILSLEY BANK, a
banking corporation organized under the laws of the State of Wisconsin, as
administrator (the "Administrator"), and BANK ONE, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Owner Trustee is issuing the Notes pursuant to the Indenture
and the Certificates pursuant to the Trust Agreement and has entered into
certain agreements in connection therewith, including (i) the Sale and Servicing
Agreement, (ii) the Note Depository Agreement, and (iii) the Indenture (the Sale
and Servicing Agreement, the Note Depository Agreement and the Indenture being
referred to hereinafter collectively as the "Related Agreements"); and
WHEREAS, the Owner Trustee desires to have the Administrator perform
certain duties of the Owner Trustee under the Related Agreements and to provide
such additional services consistent with the terms of this Agreement and the
Related Agreements as the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for 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 sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
SECTION 1. Definitions and Usage.
(a) Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix X to the Sale and Servicing Agreement dated as of October 10, 2002.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (i)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (ii) terms defined in Article 9 of the UCC as in effect in the State
of New York and not otherwise defined in this Agreement are used as defined in
that Article; (iii) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
provision of this Agreement; (iv) references to any Article, Section, Schedule
or Exhibit are references to Articles, Sections, Schedules and Exhibits in or to
this Agreement, and references
2002-1 Administration Agreement
to any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (v) the term "including" means "including without
limitation"; (vi) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (vii) references to any Person include that Person's successors and
assigns; and (viii) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SECTION 2. Duties of the Administrator.
(a) Duties with Respect to the Basic Documents.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Owner Trustee under the Note Depository
Agreement. In addition, the Administrator shall consult with the Owner Trustee
regarding the duties of the Owner Trustee under the Basic Documents.
(ii) The Administrator shall monitor the performance of the Owner
Trustee and shall advise the Owner Trustee when action is necessary to comply
with the Owner Trustee's duties under the Basic Documents.
(iii) The Administrator shall prepare for execution by the Owner
Trustee, or shall cause the preparation by appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions that shall
be the duty of the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents.
(iv) In furtherance of the foregoing, the Administrator shall take
all appropriate action that is the duty of the Owner Trustee to take pursuant to
the Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture (references
are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept 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 2.4);
(B) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.2);
(C) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
property from the lien of the Indenture (Section 2.9);
(D) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
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(E) the duty to cause newly appointed Note Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(F) the direction to the Indenture Trustee to deposit monies
with Note Paying Agents, if any, other than the Indenture Trustee and the
retention of any unclaimed amounts with respect to the Notes (Section 3.3);
(G) the obtaining and preservation of the Owner Trustee'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 or agreement included in the Trust Estate (Section 3.4);
(H) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of
such other action as is necessary or advisable to protect the Trust Estate
(Section 3.5);
(I) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Trust Estate, and
the annual delivery of the Officer's Certificate and certain other
statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(J) the identification to the Indenture Trustee in an
Officer's Certificate of any Person with whom the Owner Trustee has
contracted to perform its duties under the Indenture (Section 3.7(b));
(K) the notification of the Indenture Trustee and the Rating
Agencies of a Servicer Termination Event under the Sale and Servicing
Agreement and, if such Servicer Termination Event arises from the failure
of the Servicer to perform any of its duties under the Sale and Servicing
Agreement with respect to the Receivables, the taking of all reasonable
steps available to remedy such failure (Section 3.7(d));
(L) the preparation and obtaining of documents and instruments
required for the transfer by the Owner Trustee of its properties or assets
(Section 3.10(b));
(M) the duty to cause the Servicer to comply with Sections
4.9, 4.10, 4.11, 4.12 and 5.5 of the Sale and Servicing Agreement (Section
3.14);
(N) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the Indenture and
each default by the Servicer or the Seller under the Sale and Servicing
Agreement (Section 3.18);
(O) the monitoring of the Owner Trustee's obligations as to
the satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinions of Counsel and the
Independent Certificate relating thereto (Section 4.1);
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(P) the monitoring of the Owner Trustee's obligations as to
the satisfaction, discharge and defeasance of the Notes and the preparation
of an Officer's Certificate and the obtaining of an opinion of a nationally
recognized firm of independent certified public accountants, a written
confirmation thereof and the Opinions of Counsel relating thereto (Section
4.1);
(Q) the preparation and delivery of an Officer's Certificate
to the Indenture Trustee after the occurrence of any event which with the
giving of notice and the lapse of time would become an Event of Default
under Section 5.1(c) of the Indenture, its status and what action the Owner
Trustee is taking or proposes to take with respect thereto (Section 5.1);
(R) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate at one or more public
or private sales called and conducted in any manner permitted by law if an
Event of Default shall have occurred and be continuing (Section 5.4);
(S) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(T) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and
any written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Sections 6.8 and 6.10);
(U) 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 7.1);
(V) the preparation and, after execution by the Owner Trustee,
the filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders (Section
7.3);
(W) the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions necessary with
respect to investment and reinvestment, to the extent permitted, of funds
in such accounts (Sections 8.2, 8.3 and 8.7);
(X) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate (Sections
8.4 and 8.5);
(Y) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the
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Noteholders of notices with respect to such supplemental indentures
(Sections 9.1, 9.2 and 9.3);
(Z) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(AA) the notification of Noteholders of redemption of the Notes
or duty to cause the Indenture Trustee to provide such notification
(Section 10.2);
(BB) the preparation and delivery of all Officer's Certificates
and the obtaining of Opinions of Counsel and Independent Certificates with
respect to any requests by the Owner Trustee to the Indenture Trustee to
take any action under the Indenture (Section 11.1(a));
(CC) the preparation and delivery of Officer's Certificates and
the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b));
(DD) the notification of the Rating Agencies, upon the failure
of the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 of the Indenture (Section 11.4);
(EE) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.6); and
(FF) the recording of the Indenture, if applicable (Section
11.15).
(v) Payment of Fees and Indemnification by the Administrator.
The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under the
Indenture (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) pursuant to
the terms of the letter agreement between Administrator and Indenture
Trustee dated October 10, 2002;
(B) The Administrator agrees to pay to each agent of the
Indenture Trustee from time to time reasonable compensation for its
services as agreed upon between such agent and the Administrative Agent.
(C) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of such agents and
counsel as Indenture Trustee may employ in connection with the exercise and
performance of its rights and its duties under the Indenture), except any
such
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expense, disbursement or advance as may be attributable to its willful
misconduct, negligence or bad faith;
(D) indemnify the Indenture Trustee (individually and in its
capacity as such) and its successors, assigns, directors, officers,
employees and agents against any and all loss, liability or expense
(including attorneys' fees and expenses) incurred by it in connection with
the acceptance or the administration of the trust created under the
Indenture and the performance of its duties thereunder; provided, however,
that the Administrator shall not be liable for or required to indemnify
Indenture Trustee from and against any of the foregoing expenses arising or
resulting from Indenture Trustee's own willful misconduct, negligence or
bad faith or to the extent arising from the breach by Indenture Trustee of
any of its representations and warranties and covenants set forth in the
Indenture;
(E) pay to The Bank of New York (Delaware) from time to time
reasonable compensation for all services rendered by The Bank of New York
(Delaware) under the Trust Agreement (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust)pursuant to the terms of the letter agreement between
Administrator and The Bank of New York (Delaware) dated October 10, 2002;
(F) except as otherwise expressly provided for in the Trust
Agreement, reimburse The Bank of New York (Delaware) upon its request for
all reasonable expenses, disbursements and advances incurred or made by The
Bank of New York (Delaware) in connection with its rights and duties under
the Trust Agreement (including the reasonable compensation, expenses and
disbursements of such agents and counsel as Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
under the Trust Agreement), except any such expense may be attributable to
its willful misconduct, negligence or bad faith.
(G) to the fullest extent permitted by law, indemnify The Bank
of New York (Delaware) (individually and in its capacity as Owner Trustee)
and its successors, assigns, directors, officers, employees and agents from
and against, any and all loss, liability and expense (including reasonable
legal fees and expenses) of any kind and nature whatsoever which may at any
time be imposed on, incurred by, or asserted against The Bank of New York
(Delaware) or any Indemnified Party in any way relating to or arising out
of the Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of The
Bank of New York (Delaware) under the Trust Agreement, provided, however,
that the Administrator shall not be liable for or required to indemnify The
Bank of New York (Delaware) from and against any of the foregoing expenses
arising or resulting from any of the matters described in the third
sentence of Section 7.1 of the Trust Agreement.
Indemnification under this subsection shall survive the resignation or removal
of The Bank of New York (Delaware) as Owner Trustee or the Indenture Trustee and
the termination of this Agreement or any other Basic Document. If any suit,
action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against
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any Person in respect of which indemnity may be sought pursuant to this Section,
such Person (the "Indemnified Person") shall promptly notify Administrator in
writing, and Administrator, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others Administrator designates in such proceeding
and shall pay the reasonable fees and expenses of such counsel related to such
proceeding. Administrator shall not be liable for any settlement of any claim or
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, Administrator agrees
to indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Administrator shall not, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding. If Administrator shall have made any
indemnity payments pursuant to this subsection and the Person to or on behalf of
whom such payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to Administrator, without
interest.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth above,
the Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate persons of, and shall execute on
behalf of the Owner Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements, and at the request
of the Owner Trustee shall take all appropriate action that it is the duty of
the Owner Trustee to take pursuant to the Related Agreements.
(ii) Subject to Section 5 of this Agreement, and in accordance with
the directions of the Owner Trustee, the Administrator 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 Administrator. In addition, the
Administrator shall be responsible for the following matters:
(A) 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 Owner Trustee's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(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.
(B) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Administrator, the Trust or the Owner
Trustee set forth in Sections 5.5(a), (b), (c), (d) and (e), 5.6(a) and 9.1
of the Trust Agreement and Sections 4.3, 4.4(b), 4.7, 5.1(b) and (c), 5.6
and 8.4 of the Sale and Servicing Agreement, with respect to, among other
things, accounting and reports to Certificateholders.
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(C) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for the
performance of the duties of the Trust or the Owner Trustee set forth in
Section 2.2 of the Sale and Servicing Agreement with respect to the
transfer of Subsequent Receivables on each Funding Date during the
Pre-Funding Period and in Section 5.3 of the Sale and Servicing Agreement
with respect to the establishment of the Pre-Funding Account.
(D) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
establishing the Reserve Account pursuant to Section 5.8 of the Sale and
Serving Agreement.
(E) The Administrator will provide prior to November 15, 2002,
a certificate of an Authorized Officer in form and substance satisfactory
to the Owner Trustee as to whether any tax withholding is then required
and, if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Administrator shall be
required to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(F) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required to
be performed in connection with the resignation or removal of the Owner
Trustee, and any other duties expressly required to be performed by the
Administrator pursuant to the Trust Agreement.
(G) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions 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 Owner Trustee and shall
be, in the Administrator's opinion, no less favorable to the Owner Trustee
than would be available from unaffiliated parties.
(c) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture
pursuant to Article IX of the Indenture;
(B) the initiation of any claim or lawsuit by the Owner
Trustee and the compromise of any action, claim or lawsuit brought by or
against the Owner Trustee (other than in connection with the collection of
the Receivables or Eligible Investments);
(C) the amendment, change or modification of the Related
Agreements;
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(D) the appointment of successor Note Registrars, successor
Note Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar, Note
Paying Agent or Indenture Trustee of its obligations under the Indenture;
and
(E) the removal of the Indenture Trustee.
(d) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Related Agreements, (y) sell the Trust Estate pursuant
to Section 5.4 of the Indenture or (z) take any other action that the Owner
Trustee directs the Administrator not to take on its behalf.
SECTION 3. Duties of the Owner Trustee. Owner Trustee will deliver to
Administrator, on March 31 of each year beginning on March 31, 2002, of the
Trust (commencing 120 days after the fiscal year ended December 30, 2002) an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of Owner Trustee during such year and of
performance under the Trust Agreement has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, other than the duties of the Administrator pursuant to the
Administration Agreement, Owner Trustee has complied with all conditions and
covenants under the Trust Agreement throughout such year, or, if there has been
a default in the compliance of any such condition or covenant, specifying each
such default known to such Authorized Officer and the nature and status thereof.
SECTION 4. 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 Owner Trustee and
the Depositor at any time during normal business hours.
SECTION 5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,500 annually
(the "Administration Fee") which shall be solely an obligation of the Servicer.
SECTION 6. Additional Information To Be Furnished to the Owner Trustee. The
Administrator shall furnish to the Owner Trustee from time to time such
additional information regarding the Collateral as the Owner Trustee shall
reasonably request.
SECTION 7. 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 Owner Trustee or the Indenture Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Owner Trustee, the
Administrator shall have no authority to act for or represent the Owner Trustee
(and, regardless of whether authorized by the Owner Trustee, the Administrator
shall have no such
9 2002-1 Administration Agreement
authority at all with respect to the Indenture Trustee) in any way and shall not
otherwise be deemed an agent of the Owner Trustee or the Indenture Trustee.
SECTION 8. No Joint Venture. Nothing contained in this Agreement shall
constitute the Administrator and either of the Owner Trustee as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, shall be construed to impose any liability as such on any
of them or 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 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 Owner Trustee or the Indenture Trustee.
SECTION 10. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Trust, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Owner Trustee with at least sixty (60) days'
prior written notice.
(c) Subject to Sections 9(e) and 9(f), the Owner Trustee may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), at the sole option of the Owner
Trustee, the Administrator may be removed immediately upon written notice of
termination from the Owner Trustee to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall not
cure such default within ten (10) days (or, if such default cannot be cured in
such time, shall not give within ten (10) days such assurance of cure as shall
be reasonably satisfactory to the Owner Trustee);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within sixty (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 or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary 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
10 2002-1 Administration Agreement
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 9(d) shall occur, it shall give written notice
thereof to the Owner Trustee within seven (7) days after the happening of such
event.
(e) No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (1) a successor Administrator shall have been
appointed by the Owner Trustee and (2) 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.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement.
SECTION 11. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 9(a) or the
resignation or removal of the Administrator pursuant to Section 9(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Owner Trustee all property and documents
of or relating to the Collateral then in the custody of the Administrator. In
the event of the resignation or removal of the Administrator pursuant to Section
9(b) or (c), respectively, the Administrator shall cooperate with the Owner
Trustee and the Indenture Trustee and take all reasonable steps requested to
assist the Owner Trustee in making an orderly transfer of the duties of the
Administrator.
SECTION 12. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Owner Trustee, to:
M&I Auto Loan Trust 2002-1
c/o The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ Center, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Bank of New York
101 ▇▇▇▇▇▇▇ St. 8W
11 2002-1 Administration Agreement
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust - ABS Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank
770 North Water Street NW5
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Indenture Trustee, to:
Bank One, National Association
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code IL1-0481
Attention: Global Corporate Trust Services Division/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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, facsimile or
hand-delivered to the address of such party as provided above.
SECTION 13. Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Owner Trustee, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or Certificateholders; provided that, unless the Rating Agency
Condition shall have been satisfied, such amendment will not materially and
adversely affect the interest of any Noteholder or Certificateholder; and
provided further that any amendment entered into pursuant to this Section 13(a)
shall not significantly change the permitted activities of the Trust.
(b) This Agreement may also be amended by the Owner Trustee, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the Noteholders of Notes evidencing not less than a majority of the
Outstanding Amount of the Controlling Note Class and the Certificateholders of
Certificates evidencing not less than a majority of the Certificate Balance 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
12 2002-1 Administration Agreement
Noteholders or the Certificateholders; provided, however, that no such amendment
may increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or Certificateholders or
reduce the aforesaid percentage of the Noteholders and Certificateholders which
are required to consent to any such amendment, without the consent of the
Noteholders of all the Notes Outstanding and Certificateholders of Certificates
evidencing all the Certificate Balance.
SECTION 14. 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 and the Indenture Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. 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 or the Indenture 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 Owner Trustee and the Indenture 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 15. Governing Law. This agreement shall be construed in accordance with
the laws of the State of New York, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 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 be an original, but all of which together shall
constitute but 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 M&I Bank in Other Capacities. Nothing in this
Agreement shall affect any right or obligation M&I Bank may have in any other
capacity.
SECTION 20. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) It is expressly understood and agreed by and between the parties
hereto (i) that this Agreement is executed and delivered by The Bank of New York
(Delaware), not in its individual capacity but solely as Owner Trustee under the
Trust Agreement dated as of October
13 2002-1 Administration Agreement
10, 2002 with M&I Dealer Auto Securitization, LLC and M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank
(the "Trust Agreement") in the exercise of the power and authority conferred and
vested in it as such Owner Trustee, (ii) each of the representations,
undertakings and agreements made herein by the Owner Trustee are not personal
representations, undertakings and agreements of The Bank of New York (Delaware),
but are binding only on the trust estate created pursuant to the Trust
Agreement, (iii) nothing contained herein shall be construed as creating any
liability on The Bank of New York (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under any such party, and (iv) under
no circumstances shall The Bank of New York (Delaware) be personally liable for
the payment of any indebtedness or expense of the Owner Trustee or be liable for
the breach or failure of any obligations, representation, warranty or covenant
made or undertaken by the Owner Trustee under this Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Bank One, National Association not in its
individual capacity but solely as Indenture Trustee and in no event shall
Indenture Trustee have any liability for the representations, warranties,
covenants, agreements or other obligations of the M&I Auto Loan Trust 2002-1
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the M&I Auto Loan Trust 2002-1. For all purposes of this Agreement, in the
performance of any duties or obligations of the M&I Auto Loan Trust 2002-1
hereunder, the Indenture Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI of the Indenture.
SECTION 21. Third-Party Beneficiary. The Owner Trustee, The Bank of New York
(Delaware) and the Indenture Trustee are third-party beneficiaries to this
Agreement and are entitled to the rights and benefits hereunder and may enforce
the provisions hereof as if they were parties hereto.
SECTION 22. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, the Depositor, the Administrator, the Owner Trustee and the Indenture
Trustee shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Trust, acquiesce, petition
join in, encourage or otherwise invoke or cause the Trust to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust.
14 2002-1 Administration Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as Owner Trustee of M&I
Auto Loan Trust 2002-1
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
15 2002-1 Administration Agreement
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: -----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
16 2002-1 Administration Agreement
M&I ▇▇▇▇▇▇▇▇ & ILSLEY BANK, as Administrator
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
17 2002-1 Administration Agreement