EXECUTION COPY
Exhibit 10.3
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ADMINISTRATION AGREEMENT
by and among
M&I AUTO LOAN TRUST 2003-1
as Trust
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
as Administrator
and
BNY MIDWEST TRUST CO.
as Indenture Trustee
November 13, 2003
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TABLE OF CONTENTS
Page
SECTION 1. Definitions and Usage............................................1
SECTION 2. Duties of the Administrator......................................2
SECTION 3. Records..........................................................9
SECTION 4. Compensation.....................................................9
SECTION 5. Additional Information To Be Furnished to the Owner Trustee......9
SECTION 6. Independence of the Administrator................................9
SECTION 7. No Joint Venture.................................................9
SECTION 8. Other Activities of Administrator................................9
SECTION 9. Term of Agreement; Resignation and Removal of Administrator.....10
SECTION 10. Action upon Termination, Resignation or Removal.................11
SECTION 11. Notices.........................................................11
SECTION 12. Amendments......................................................12
SECTION 13. Successors and Assigns..........................................12
SECTION 14. Governing Law...................................................13
SECTION 15. Headings........................................................13
SECTION 16. Counterparts....................................................13
SECTION 17. Severability....................................................13
SECTION 18. Not Applicable to M&I Bank in Other Capacities..................13
SECTION 19. Limitation of Liability of Owner Trustee and Indenture
Trustee.........................................................13
SECTION 20. Third-Party Beneficiary.........................................14
SECTION 21. Nonpetition Covenants...........................................14
-i-
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of November 13, 2003 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among M&I AUTO LOAN TRUST 2003-1, (the "Trust"), M&I
▇▇▇▇▇▇▇▇ & ILSLEY BANK, a banking corporation organized under the laws of the
State of Wisconsin, as administrator (the "Administrator"), and BNY MIDWEST
TRUST CO., an Illinois trust company not in its individual capacity but solely
as Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Trust 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 Trust and Deutsche Bank Trust Company Delaware, not in its
individual capacity but as owner trustee of the Trust ("Owner Trustee") desire
to have the Administrator perform certain duties of the Trust and the Owner
Trustee (in its capacity as 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 Trust 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 Trust and 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 November 13, 2003.
(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 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 Trust and the Owner Trustee (in its capacity
as Owner Trustee) under the Note Depository Agreement. In addition, the
Administrator shall consult with the Trust and the Owner Trustee regarding the
duties of the Trust and Owner Trustee under the Basic Documents.
(ii) The Administrator shall monitor the performance of the Trust and
the Owner Trustee and shall advise the Trust and the Owner Trustee when action
is necessary to comply with the Trust and the Owner Trustee's duties under the
Basic Documents.
(iii) The Administrator shall prepare for execution by the Trust, 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 Trust or 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 Trust or 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);
(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);
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(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 Trust's qualification
to do business, and any required license or approval, in each jurisdiction
in which such qualification license or approval, 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 Trust 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 Trust 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 Trust'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);
(P) the monitoring of the Trust'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
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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 Trust
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 Trust, the
filing with the Commission, any applicable state agencies and delivery to
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 Noteholders of notices with respect to
such supplemental indentures (Sections 9.1, 9.2 and 9.3);
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(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 Trust 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 November 13, 2003;
(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 expense, disbursement or advance as may be attributable to its willful
misconduct, negligence or bad faith;
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(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 Deutsche Bank Trust Company Delaware from time to
time reasonable compensation for all services rendered by Deutsche Bank
Trust Company 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 Deutsche Bank Trust Company Delaware dated
November 13, 2003;
(F) except as otherwise expressly provided for in the Trust
Agreement, reimburse Deutsche Bank Trust Company Delaware upon its request
for all reasonable expenses, disbursements and advances incurred or made by
Deutsche Bank Trust Company 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 that may be
attributable to its willful misconduct, gross negligence or bad faith.
(G) to the fullest extent permitted by law, indemnify Deutsche
Bank Trust Company 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 Deutsche
Bank Trust Company 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 Deutsche Bank Trust Company Delaware under the Trust Agreement,
provided, however, that the Administrator shall not be liable for or
required to indemnify Deutsche Bank Trust Company 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 Deutsche Bank Trust Company 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 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,
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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 Trust or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of the Trust or
the Owner Trustee to prepare, file or deliver pursuant to the Related
Agreements, and at the request of the Trust or the Owner Trustee shall take all
appropriate action that it is the duty of the Trust or the Owner Trustee to take
pursuant to the Related Agreements.
(ii) Subject to Section 4 of this Agreement, and in accordance with
the directions of the Trust, 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 Trust 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 Trust'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 December 15, 2003,
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 Trust and shall be, in the
Administrator's opinion, no less favorable to the Trust 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 Trust and the
compromise of any action, claim or lawsuit brought by or against the Trust
(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 Trust
directs the Administrator not to take on its behalf.
SECTION 3. 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 Trust and the
Depositor at any time during normal business hours.
SECTION 4. 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 5. Additional Information To Be Furnished to the Owner Trustee. The
Administrator shall furnish to the Trust from time to time such additional
information regarding the Collateral as the Trust shall reasonably request.
SECTION 6. 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 Trust, 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 Trust, the
Administrator shall have no authority to act for or represent the Trust or the
Owner Trustee (and, regardless of whether authorized by the Trust, the
Administrator shall have no such authority at all with respect to the Indenture
Trustee) in any way and shall not otherwise be deemed an agent of the Trust or
the Owner Trustee or the Indenture Trustee.
SECTION 7. No Joint Venture. Nothing contained in this Agreement 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, 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 8. 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 Trust or the Owner Trustee or the Indenture
Trustee.
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SECTION 9. 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 Trust with at least sixty (60) days' prior
written notice.
(c) Subject to Sections 9(e) and 9(f), the Trust 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 Trust,
the Administrator may be removed immediately upon written notice of termination
from the Trust 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 Trust);
(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 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 Trust 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 Trust 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.
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(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 10. 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 Trust 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 Trust and
the Indenture Trustee and take all reasonable steps requested to assist the
Trust in making an orderly transfer of the duties of the Administrator.
SECTION 11. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Trust, to:
M&I Auto Loan Trust ▇▇▇▇-▇
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Trust Company Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇-▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Corporate Trust and Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank
770 North Water Street NW5
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
(c) If to the Indenture Trustee, to:
BNY Midwest Trust Co.
▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Group
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 12. Amendments.
(a) This Agreement may be amended from time to time by a written amendment
duly executed and delivered by the Trust, the Administrator and the Indenture
Trustee, with the written consent of the Trust, 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 12(a) shall not significantly
change the permitted activities of the Trust.
(b) This Agreement may also be amended by the Trust, 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 Percentage Interest 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 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 Percentage
Interest.
SECTION 13. 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,
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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 Trust 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 14. 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 15. 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 16. 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 17. 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 18. 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 19. 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 Deutsche Bank Trust
Company Delaware, not in its individual capacity but solely as Owner Trustee of
the Trust under the Trust Agreement dated as of November 13, 2003 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 Trust are not personal representations,
undertakings and agreements of Deutsche Bank Trust Company Delaware, but are
binding only on the Trust, (iii) nothing contained herein shall be construed as
creating any liability on Deutsche Bank Trust Company Delaware, individually or
personally, to perform any covenant of the Trust 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 Deutsche Bank Trust Company Delaware be
personally liable for the payment of any
13
indebtedness or expense of the Trust or be liable for the breach or failure of
any obligations, representation, warranty or covenant made or undertaken by the
Trust under this Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by BNY Midwest Trust Co. 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 2003-1 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
2003-1. For all purposes of this Agreement, in the performance of any duties or
obligations of the M&I Auto Loan Trust 2003-1 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 20. Third-Party Beneficiary. Deutsche Bank Trust Company 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 21. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, the Seller, 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 or the Seller,
acquiesce, petition join in, encourage or otherwise invoke or cause the Trust or
the Seller to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Trust or the Seller 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 the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Trust
or the Seller.
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
M&I AUTO LOAN TRUST 2003-1, as Trust
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
15
BNY MIDWEST TRUST CO., not in its
individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
16
M&I ▇▇▇▇▇▇▇▇ & ILSLEY BANK,
as Administrator
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
17
