Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture): (i) 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); (ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c)); (iii) 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); (iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9); (v) [reserved]; (vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3); (vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3); (viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4); (ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5); (x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9); (xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b)); (xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d)); (xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b)); (xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19); (xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1); (xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4); (xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1); (xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3); (xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3); (xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5); (xxi) the preparation of Issuing Entity 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); (xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6); (xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2); (xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a)); (xxv) 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)); (xxvi) 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 (xxvii) the recording of the Indenture, if applicable (Section 11.15). (b) Duties with Respect to the Trust. (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator. (ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision. (iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns. (iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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. (v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement. (vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties. (vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 28 contracts
Samples: Administration Agreement (CNH Equipment Trust 2021-B), Administration Agreement (CNH Equipment Trust 2021-B), Administration Agreement (CNH Equipment Trust 2021-A)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Wilmington, Delaware, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement, ;
(N) the taking duty to cause the Servicer to comply with Article Five and Article Nine of all reasonable steps available to remedy such failure the Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 16 contracts
Samples: Administration Agreement (Harley Davidson Motorcycle Trust 2004 1), Administration Agreement (Harley-Davidson Motorcycle Trust 2005-4), Administration Agreement (Harley-Davidson Motorcycle Trust 2009-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA CNHCA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 13 contracts
Samples: Administration Agreement (CNH Equipment Trust 2013-C), Administration Agreement (CNH Equipment Trust 2013-C), Administration Agreement (CNH Equipment Trust 2013-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Note Depository Agreement. .
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documentsNote Depository Agreement. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documentsthe Indenture and the Note Depository Agreement. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, filings, instruments, notices, certificates and opinions as that it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Indenture and the Note Depository Agreement. In furtherance of the foregoing, the Administrator shall take take, in the name and on behalf of the Issuer, all appropriate action that is the duty of the Issuing Entity or the Trustee Issuer to take take, pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution of the Notes and delivery of the same to the Indenture Trustee for authentication (Section 2.2);
(B) 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 and the determination as to whether the requirements of UCC Section 8-401(a) are met and the preparation of an Issuer Request requesting the Indenture Trustee to authenticate and deliver Notes in connection with any transfer or exchange (Section 2.42.5);
(iiC) the fixing or causing determination as to be fixed whether the requirements of any specified record date UCC Section 8-405 are met and the notification preparation of an Issuer Request requesting the Indenture Trustee to authenticate and Noteholders with respect to special payment datesdeliver replacement Notes in lieu of mutilated, if any destroyed, lost or stolen Notes (Section 2.7(c2.6);
(D) the determination of the expenses associated with the issuance of replacement Notes (Section 2.6(b));
(iii) 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);
(ivE) the preparation, obtaining or filing of the Issuer Requests, instruments, opinions, opinions and certificates and other documents required for the release of property from the Collateral lien of the Indenture (Section 2.92.10);
(vF) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency and delivery of such to the Indenture Trustee (Section 2.13);
(viG) the maintenance and notice of location of the office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes if the Indenture Trustee ceases to maintain such an office (Section 3.2);
(H) 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 3.33.3(c));
(viiI) the direction delivery of the Issuer Order to the Paying Agents Indenture Trustee to deposit monies with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.3(d));
(viiiJ) the delivery of an Issuer Request for publication and notification of unclaimed amounts (Section 3.3(e));
(K) the maintenance of the Issuer's status as a statutory trust and the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Indenture Trust Estate (Section 3.4);
(ixL) the preparation and filing, as applicable, of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Indenture Trust Estate (Section 3.5Sections 3.5 and 3.7(c));
(xM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Indenture Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiN) the identification to the Indenture Trustee in an Officer’s 's Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiO) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiP) the appointment of the Successor Servicer and preparation of the related servicing agreement (Section 3.7(e));
(Q) the notification of the termination of the Servicer and appointment of the Successor Servicer (Section 3.7(f));
(R) the preparation and obtaining of documents any documents, instruments and instruments opinions required for the release consolidation or merger of the Issuing Entity from Issuer with another entity or the transfer by the Issuer of its obligations under the Indenture properties or assets (Section 3.10(b3.10);
(S) the delivery of a letter for release (Section 3.11(b));
(xivT) the duty to cause the Servicer to comply with Sections 3.9, 3.10, 3.11, 3.12, 3.13 and 4.9 and Article VI of the Sale and Servicing Agreement (Section 3.14);
(U) upon the request of the Indenture Trustee, the execution and delivery of any instruments and the undertaking of any actions reasonably necessary to carry out more effectively the purpose of the Indenture (Section 3.17);
(V) the delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller under any party to the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvW) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion Opinions of Counsel and the Independent Certificate relating thereto and the demand to the Indenture Trustee for execution of certain instruments (Section 4.1);
(X) the monitoring of the Issuer'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 certification thereof and the Opinions of Counsel relating thereto (Section 4.1);
(xviY) the demand to remit monies (Section 4.3);
(Z) the preparation 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(iii) of the Indenture, its status and what action the Issuer is taking or proposes to take with respect thereto (Section 5.1);
(AA) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Indenture Trust Estate at one or more public or private sales called and conducted in a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing (Section 5.4);
(xviiAB) the furnishing undertaking of actions set forth in Section 5.16 as requested by the Indenture Trustee (Section 5.16);
(AC) the payment of expenses, costs and indemnities to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.16.7);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 10 contracts
Samples: Administration Agreement (USAA Auto Owner Trust 2006-4), Administration Agreement (Usaa Auto Owner Trust 2005-1), Administration Agreement (USAA Auto Owner Trust 2006-1)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in accordance with any provision of the event that Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any withholding tax is imposed such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense (including reasonable legal fees and expenses) incurred without negligence or bad faith on their part, arising out of or in connection with the Trust’s payments acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of (i) defending themselves against any claim or allocations liability in connection with the exercise or performance of incomeany of their powers or duties under the Indenture and (ii) to an enforcing this indemnity;
(C) indemnify the Owner as Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated in Section 5.2(c) of by the Trust Agreement. Any such notice shall specify , including the amount reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any withholding tax required to be withheld by of their powers or duties under the Trustee pursuant to such provision.Trust Agreement;
(iiiD) Notwithstanding anything in this Agreement or maintain the Related Agreements to the contrary, the Administrator shall be responsible for performance effectiveness of all of the duties Issuer’s licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in connection with the Indenture and the transactions contemplated thereby until the lien and security interest of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants shall be required to update the letter in each instance that any additional tax withholding is subsequently required or any previously required tax withholding Indenture shall no longer be required.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be effect in accordance with any directions received from the Issuing Entity terms thereof; and
(1) pay the Asset Representations Reviewer’s Review Fee and shall be(2) reimburse the Asset Representation Reviewer’s travel expenses and dispute resolution expenses, in each case, as set forth in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesAsset Representations Review Agreement.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 9 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2024-B), Administration Agreement (Harley-Davidson Motorcycle Trust 2024-B), Administration Agreement (Harley-Davidson Motorcycle Trust 2024-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, and the taking of other actions, in each case in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate Indenture (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release conveyance or transfer of properties or assets by the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.4(a));
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state State income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby hxxxxx agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 7 contracts
Samples: Administration Agreement (CNH Equipment Trust 2024-C), Administration Agreement (CNH Equipment Trust 2024-C), Administration Agreement (CNH Equipment Trust 2024-B)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Wilmington, Delaware, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(FF) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiGG) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bHH) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 6 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2011-2), Administration Agreement (Harley-Davidson Motorcycle Trust 2011-2), Administration Agreement (Harley-Davidson Motorcycle Trust 2011-1)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 6 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2015-2), Administration Agreement (Harley-Davidson Motorcycle Trust 2015-2), Administration Agreement (Harley-Davidson Motorcycle Trust 2015-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 6 contracts
Samples: Administration Agreement (CNH Equipment Trust 2015-C), Administration Agreement (CNH Equipment Trust 2015-C), Administration Agreement (CNH Equipment Trust 2015-B)
Duties of the Administrator. (a) Duties with Respect Subject to the Indenture direction and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties control of the Issuing Entity and Board of Trustees of the Trustee under the Indenture and the Depository Agreement. In additionTrust, the Administrator shall consult with perform such administrative and management services as may from time to time be reasonably requested by the Trustee regarding Trust, which shall include without limitation: (a) providing office space, equipment and clerical personnel necessary for maintaining the duties organization of the Issuing Entity Trust and for performing the administrative and management functions herein set forth; (b) arranging, if desired by the Trust, for Directors, officers and employees of the Administrator to serve as Trustees, officers or agents of the Trust if duly elected or appointed to such positions and subject to their individual consent and to any limitations imposed by law; (c) supervising the overall administration of the Trust, including negotiation of contracts and fees with and the Trustee under such documents. The Administrator shall monitor the monitoring of performance and xxxxxxxx of the Issuing Entity Trust's transfer agent, shareholder servicing agents, custodian and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s other independent contractors or the Trustee’s duties under such documents. The Administrator shall prepare agents; (d) preparing and, if applicable, filing all documents required for execution compliance by the Issuing Entity or shall cause the Trust with applicable laws and regulations, including registration statements, prospectuses and statements of additional information, semi-annual and annual reports to shareholders, proxy statements and tax returns; (e) preparation by other appropriate persons of all such documentsagendas and supporting documents for and minutes of meetings of Trustees, reports, filings, instruments, certificates committees of Trustees and opinions as it shall be the duty shareholders; and (f) arranging for maintenance of books and records of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documentsTrust. In furtherance of Notwithstanding the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee not be deemed to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of have assumed any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.4);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other thingsand shall not be responsible for, accounting the management of the Trust's assets or the rendering of investment advice and reports to Owners; provided, however, that the Trustee shall retain responsibility for supervision with respect thereto or the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If Shares of any Certificates are held by any Person other than the DepositorFund, nor shall the Administrator shall satisfy its obligations be deemed to have assumed or have any responsibility with respect to clauses (ii) and (iii) functions specifically assumed by retainingany transfer agent, at the expense custodian or shareholder servicing agent of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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 requiredTrust.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 6 contracts
Samples: Administrative Services Agreement (Landmark Tax Free Income Funds), Administrative Services Agreement (Citifunds Trust Iii), Administrative Services Agreement (Citifunds Multi State Tax Free Trust)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Issuer.
(i) The Administrator shall agrees to perform all of its duties as Administrator as set forth herein, and the duties of the Issuing Entity Issuer and the Owner Trustee under as specified herein, pursuant to a power of attorney substantially in the Indenture and the Depository Agreementform of Exhibit A hereto. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Owner Trustee or the Issuer under the Indenture and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity Sale and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documentsServicing Agreement. The Administrator shall prepare for execution by the Issuing Entity Owner Trustee on behalf of the Issuer, or shall cause the preparation by other appropriate persons of or entities of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Issuer and Owner Trustee to prepare, file or deliver pursuant to the Sale and Servicing Agreement or the Indenture. In addition, the Administrator shall take or cause the Issuer to take all action that is the duty of the Issuer to take pursuant to the Sale and Servicing Agreement, the Indenture and the related agreements and the Basic Documents to which the Issuer is a party, except (i) any such documentsduties that constitute Non-Ministerial Matters (as described in Section 2(c) below), (ii) duties that are expressly identified to be performed by the Owner Trustee or another Person on behalf of the Issuer, (iii) duties constituting payment obligations of the Issuer, including duties under Article V of the Sale and Servicing Agreement (it being understood and agreed that the Administrator in its individual capacity shall not be responsible for any payment obligations of the Issuer), and (iv) duties under Section 3.01 of the Indenture. In furtherance of and subject to the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (parenthetical section references in this Section are to sections of the IndentureIndenture unless otherwise specified):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iiiA) 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 2.22.02);
(ivB) the preparationduty to cause the Register to be kept and to give the Indenture Trustee notice of any appointment of a new Registrar and the location, obtaining or filing change in location, of the instruments, opinions, certificates and other documents required for the release of the Collateral Register (Section 2.92.04);
(vC) [reserved]the duty to cause an office to be maintained in Jacksonville, Florida, for registration of transfer or exchange of Notes (Section 3.02);
(viD) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust and the giving of direction to Paying Agents to pay to the Indenture Trustee all sums held in trust by such Paying Agents (Section 3.33.03);
(viiE) the direction to Paying Agents, if any, other than the Paying Agents Indenture Trustee, to deposit monies moneys with the Indenture Trustee (Section 3.3Sections 3.03 and 4.03);
(viiiF) the obtaining and preservation of the Issuing EntityIssuer’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixG) the preparation of all supplements, amendments, such supplements and amendments to the Indenture and all such UCC financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral as set forth in the Indenture and to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the Noteholders, a first Lien on, and a first priority, perfected security interest in, the Collateral (Section 3.53.05);
(xH) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust EstateCollateral, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiI) the identification to the Indenture Trustee in delivery of an Officer’s Certificate of a the Issuer to the Indenture Trustee concerning the identity of each Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiJ) the notification delivery of written notice to the Indenture Trustee and Trustee, the Rating Agencies and Noteholders of a Servicer Default pursuant to Termination Event under the Sale and Servicing Agreement and, if such Servicer Default Termination Event arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xivK) the delivery of notice to the Indenture Trustee and the Noteholders of the termination of the Servicer’s rights and powers pursuant to the Sale and Servicing Agreement and, as soon as a Successor Servicer is appointed, the delivery of written notice to the Indenture Trustee and the Noteholders of such appointment (Section 3.07(e));
(L) the duty to cause the Servicer to comply with the Sale and Servicing Agreement (Section 3.13);
(M) the delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by on the part of the Seller, the Servicer or Seller the Depositor of their respective obligations under the Sale and Servicing Agreement and (c) each default by CNHICA on the part of the Seller or the Purchaser of its obligations under the Receivables Purchase Agreement (Section 3.193.18);
(xvN) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the an Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of Collateral (Section 4.04);
(P) the compliance with any written directive of the Indenture Trustee (with the consent of the applicable requisite Noteholders as set forth in Section 5.04 of the Indenture and subject to the other applicable provisions of Section 5.04) with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04(a));
(xviiQ) the requesting of information to facilitate compliance by the Issuer with Rule 15Ga-1 under the Exchange Act. (Section 6.05(b));
(R) the delivery to the Indenture Trustee of the information necessary to deliver to each Noteholder such information as may be reasonably required to enable such Holder to prepare its United States federal and state income tax returns (Sections 6.06 and 7.04(b));
(S) the preparation and delivery of notice to Noteholders of the resignation or removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 6.08 and 6.10);
(U) the furnishing to the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 Section 8.02 of the Indenture and 8.3Section 5.01 of the Sale and Servicing Agreement);
(xxW) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies of required notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.05);
(xxiiiZ) the notification of to Noteholders of redemption of the Notes or the duty to cause causing of the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) without duplication the preparation and delivery of all Officer’s Certificates, Independent Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture to the extent permitted thereunder (Section 11.01(b));
(CC) the notification of the Rating Agencies, upon the failure of the Indenture Trustee to give notification, when required pursuant to Section 11.04 of the Indenture (Section 11.1(b)11.04);
(xxviDD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notices in accordance with the notice provisions of such agreements (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to performance by the Trust.
(i) In addition to the duties Issuer of the Administrator set forth above, the Administrator shall perform the duties covenants and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) agreements set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) Article XII of the Trust Agreement with respect to, among other things, accounting Indenture applicable to it and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the Trustee as to whether any tax withholding is then required and, if required, the procedures to be followed with respect thereto to otherwise comply with the requirements terms of Article XII of the Code. The Accountants 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 requiredIndenture.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 6 contracts
Samples: Administration Agreement (California Republic Funding LLC), Administration Agreement (California Republic Funding LLC), Administration Agreement (California Republic Funding LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, and the taking of other actions, in each case in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate Indenture (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release conveyance or transfer of properties or assets by the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.4(a));
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state State income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby xxxxxx agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 5 contracts
Samples: Administration Agreement (CNH Equipment Trust 2024-B), Administration Agreement (CNH Equipment Trust 2023-B), Administration Agreement (CNH Equipment Trust 2023-B)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in accordance with any provision of the event that Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any withholding tax is imposed such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense (including reasonable legal fees and expenses) incurred without negligence or bad faith on their part, arising out of or in connection with the Trust’s payments acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of (i) defending themselves against any claim or allocations liability in connection with the exercise or performance of incomeany of their powers or duties under the Indenture and (ii) to an enforcing this indemnity;
(C) indemnify the Owner as Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated in Section 5.2(c) of by the Trust Agreement. Any such notice shall specify , including the amount reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any withholding tax required to be withheld by of their powers or duties under the Trustee pursuant to such provision.Trust Agreement; and
(iiiD) Notwithstanding anything in this Agreement or maintain the Related Agreements to the contrary, the Administrator shall be responsible for performance effectiveness of all of the duties Issuer’s licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in connection with the Indenture and the transactions contemplated thereby until the lien and security interest of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants shall be required to update the letter in each instance that any additional tax withholding is subsequently required or any previously required tax withholding Indenture shall no longer be required.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be effect in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesterms thereof.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 5 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2021-B), Administration Agreement (Harley-Davidson Motorcycle Trust 2021-B), Administration Agreement (Harley-Davidson Motorcycle Trust 2021-A)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Chicago, Illinois, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement;
(N) the duty to cause the Servicer to comply with Sections 4.09, 4.10, 4.11 and 5.07 and Article Five and Article Nine of the taking of all reasonable steps available to remedy such failure Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee's fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 5 contracts
Samples: Administration Agreement (Harley Davidson Customer Funding Corp), Administration Agreement (Harley Davidson Customer Funding Corp), Administration Agreement (Harley Davidson Customer Funding Corp)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee Trustee, the Backup Servicer and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Backup Servicer, the Depositor and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor, the Servicer or Seller the Backup Servicer under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) 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;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 5 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2010-3), Administration Agreement (CarMax Auto Owner Trust 2010-2), Administration Agreement (CarMax Auto Owner Trust 2010-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, and the taking of other actions, in each case in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate Indenture (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release conveyance or transfer of properties or assets by the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.4(a));
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state State income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 5 contracts
Samples: Administration Agreement (CNH Equipment Trust 2022-A), Administration Agreement (CNH Equipment Trust 2022-A), Administration Agreement (CNH Equipment Trust 2021-C)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee Trustee, the Counterparties and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee Trustee, the Counterparties and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA CNHCA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 4 contracts
Samples: Administration Agreement (CNH Capital Receivables LLC), Administration Agreement (CNH Capital Receivables LLC), Administration Agreement (CNH Capital Receivables LLC)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders and the Swap Counterparty (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).;
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition to except as otherwise expressly provided in the duties Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any Expenses (as defined below) incurred without negligence, bad faith or the Trustee willful misconduct on their part, arising out of or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any of the foregoing and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement claim or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed liability in connection with the resignation exercise or removal performance of any of their powers or duties under the TrusteeIndenture; and
(D) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other duties expressly required amounts owed to be performed by the Administrator under Owner Trustee pursuant to the Trust Agreement.
) of any kind and nature whatsoever (vicollectively, “Expenses”) In carrying which may at any time be imposed on, incurred by, or asserted against the Owner Trustee in any way relating to or arising out of the foregoing duties Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee, except only that the Administrator shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, matters described in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesthird sentence of Section 7.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 4 contracts
Samples: Administration Agreement (World Omni Auto Receivables Trust 2008-B), Administration Agreement (World Omni Auto Receivables LLC), Administration Agreement (World Omni Auto Receivables Trust 2007-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account, the Reserve Account and the Secondary Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) 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;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 3 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2005-2), Administration Agreement (Carmax Auto Owner Trust 2005-3), Administration Agreement (Carmax Auto Funding LLC)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).; and
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition to except as otherwise expressly provided in the duties Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any Expenses (as defined below) incurred without negligence, bad faith or the Trustee willful misconduct on their part, arising out of or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any of the foregoing and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement claim or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed liability in connection with the resignation exercise or removal performance of any of their powers or duties under the TrusteeIndenture; and
(D) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other duties expressly required amounts owed to be performed by the Administrator under Owner Trustee pursuant to the Trust Agreement.
) of any kind and nature whatsoever (vicollectively, “Expenses”) In carrying which may at any time be imposed on, incurred by, or asserted against the Owner Trustee in any way relating to or arising out of the foregoing duties Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee, except only that the Administrator shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, matters described in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesthird sentence of Section 7.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 3 contracts
Samples: Administration Agreement (World Omni Auto Receivables Trust 2006-A), Administration Agreement (World Omni Auto Receivables Trust 2006-B), Administration Agreement (World Omni Auto Receivables LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture Depository Agreement and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documentsDepository Agreement. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documentsthe Indenture and the Depository Agreement. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates certificates, notices and opinions as it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Indenture and the Depository Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the preparation of (or obtaining of) the documents and instruments required for issuance of the Notes (if not prepared or obtained by the Issuer), including the Officer's Issuance Certificate and Opinion of Counsel to be delivered in connection with the issuance of each series of Notes, the coordination with the holders of the Revolving Notes of all borrowings under the Revolving Notes and all matters relating to such borrowings, and 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 2.1);
(B) 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);
(iiC) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special of each series of the final principal payment dates, if any on their Notes (Section 2.7(c));
(iii) 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);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.9);
(vE) [reserved]the preparation of Definitive Term Notes and arranging the delivery thereof (Section 2.12);
(viF) the maintenance of an office in the Borough of Manhattan, the City of New York, for registration of transfer or exchange of Notes (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiI) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixJ) the preparation of all supplements, amendments, financing statements, continuation statements, assignments, certificates, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(xK) the delivery of the Opinion of Counsel on the Initial Closing Date and the annual delivery of Opinions of CounselDate, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statementsOfficers' Certificate, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiL) the identification to the Indenture Trustee in an Officer’s Officers' Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiM) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Servicing Default pursuant to under the Trust Sale and Servicing Agreement and, if such Servicer Servicing Default arises from the failure of the Servicer to perform any of its duties under the Trust Sale and Servicing Agreement or the Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiN) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b3.11(b));
(xivO) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each Servicing Default, any Insolvency Event with respect to the Seller, each default by on the part of the Seller or the Servicer or Seller of their respective obligations under the Trust Sale and Servicing Agreement and (c) each default by CNHICA on the part of the Original Seller or the Servicer of their respective obligations under the Purchase Pooling and Servicing Agreement (Section 3.19);
(xvP) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and Indenture, the preparation of an Officer’s Certificate and Officers' Certificate, the obtaining of the Opinion of Counsel and the and, if necessary, an Independent Certificate relating thereto (Section 4.1);
(xviQ) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.4(a));
(xviiR) 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);
(S) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiT) the preparationpreparation and, after execution and by the Issuer, the filing with the Commission 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);
(xixU) the notification of the Indenture Trustee of the listing or delisting of the Notes of any series on any stock exchange, if and when such Notes are so listed or delisted (Section 7.4(a));
(V) the opening of one or more accounts in the Trust’s Issuer's name, the preparation of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Designated Accounts (Sections 8.2 and 8.3);
(xxW) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation of Issuing Entity 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);
(xxiiY) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of Noteholders and the Rating Agencies of the redemption of the any Notes subject to redemption or the duty to cause the Indenture Trustee to provide such notification (Section Sections 10.1 and 10.2);
(xxivAA) the preparation of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Officers' Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) 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 (Section 11.4);
(DD) 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
(xxviiEE) the recording of the Indenture, if applicable applicable, and the obtaining of an Opinion of Counsel as required pursuant to Section 11.15 (Section 11.15).
(bii) Duties with Respect to the Trust.
(i) In addition to the duties of the The Administrator set forth above, the Administrator shall will perform the duties those payment and indemnity obligations of the Issuing Entity Servicer under Section 3.02 of the Asset Representations Review Pooling and Servicing Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 Section 7.1 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 Sale and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Servicing Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) Servicer fails to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any perform such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provisionobligations.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 3 contracts
Samples: Administration Agreement (Gs Mortgage Securities Corp), Administration Agreement (Goldman Sachs Asset Backed Securities Corp), Administration Agreement (Asset Backed Securities Corp)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2019-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2019-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2019-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2019-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2019-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2019-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 3 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC), Administration Agreement
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2017-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2017-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2017-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2017-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2017-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2017-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 3 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2017-3), Administration Agreement (GM Financial Automobile Leasing Trust 2017-3), Administration Agreement (GM Financial Automobile Leasing Trust 2017-3)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) 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;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 3 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2006-2), Administration Agreement (CarMax Auto Owner Trust 2007-2), Administration Agreement (Carmax Auto Owner Trust 2007-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2015-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2015-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2015-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2015-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2015-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.46.7 and 6.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2015-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2018-B Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2018-B Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2018-B Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2018-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2018-B Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2018-B Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2018-B Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2018-B Servicing AgreementAgreement with respect to the 2018-B Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2018-B Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services; such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; the Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees and the fees of agents and experts) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2018-B Basic Documents or in connection with any proceedings brought by the Indenture Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2018-B Basic Documents; the Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity; failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder; the Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel; and neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith; the provisions of this Section 1.02(b)(iii) shall survive the termination of this Agreement.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2018-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2018-B Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2018-B Collateral (including the Related Agreements2018-B Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2018-B Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2018-B Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2018-B Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state State income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2018-B Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2018-B Leases or 2018-B Vehicles);
(iii) the amendment, change, modification or waiver of any 2018-B Basic Document;
(iv) 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, any Paying Agent or the Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2018-B Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2018-B Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2018-B), 2018 B Administration Agreement (Mercedes-Benz Auto Lease Trust 2018-B)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and and, except as specifically excluded herein, agrees to perform all the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementBasic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Basic Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c)2.05);
(iii) the preparation notification of or obtaining Noteholders of the documents and instruments required for authentication of final principal payment on the Notes and delivery of the same to the Indenture Trustee (Section 2.22.08(e));
(iv) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.02, 2.03, 2.06 and 2.12);
(v) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral collateral (Section 2.92.13);
(vvi) [reserved]the maintenance of an office or agency in the Borough of Manhattan, the City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.02);
(vivii) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.33.03);
(viii) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(ix) the obtaining and preservation of the Issuing Entity’s qualification Issuer's qualifications to do business in each jurisdiction in which where such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate Estate, including all licenses required under the (A) Maryland Vehicle Sales Finance Act and (B) Pennsylvania Motor Vehicle Sales Finance Act (Section 3.43.04);
(ixx) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxi) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xixii) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiixiii) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to the Sale and Servicing Agreement Termination Event and, if such Servicer Default Termination Event arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiixiv) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivxv) the duty to cause the Servicer to comply with the Sale and Servicing Agreement (Section 3.14);
(xvi) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer Servicer, the Seller or Seller the Depositor under the Sale and Servicing Agreement and (c) each default or by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.19);
(xvxvii) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xvixviii) the compliance with any written directive Section 5.04 of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviixix) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(xx) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(xxi) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiixxii) the preparationpreparation and, after execution and by the Issuer, the filing with the Commission 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 7.37.03);
(xixxxiii) the opening of one or more accounts in the Trust’s name, Indenture Trustee's name and the preparation taking of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxxxiv) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxixxv) the preparation of Issuing Entity Orders and Issuer Requests, the obtaining of Opinions of Counsel and the certification to the Indenture Trustee with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxvi) the execution execution, authentication and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxvii) the notification of duty to notify the Depositor, the Indenture Trustee, the Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee Servicer to provide such notification (Section 10.2Sections 10.01 and 10.02);
(xxivxxviii) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvxxix) the preparation and delivery of Officer’s 's Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien of the Indenture (Section 11.1(b11.01(b));
(xxvixxx) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Issuer, the Depositor or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(xxxi) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviixxxii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the Trustcompensation of a trustee of an express trust);
(ii) 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 Basic Documents (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its willful misconduct, negligence or bad faith;
(iii) except as otherwise expressly provided in the third sentence of Section 7.01 of the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its willful misconduct, negligence or bad faith of the Owner Trustee;
(iv) indemnify the Owner Trustee and its agents, successors, assigns, directors, officers and employees for, and hold them harmless against, any loss, obligation, damage, tax, claim, suit, liability or expense incurred without negligence, willful misconduct or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement; and
(v) promptly appoint a successor Indenture Trustee pursuant to Section 6.08 of the Indenture, upon the Indenture Trustee's resignation or removal, or if the office of the Indenture Trustee becomes vacant for any other reason.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related AgreementsBasic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the Trust’s Issuer's payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.02(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Owner Trustee pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) 5.05 of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returnsCertificateholders.
(ivf) If To the extent that any Certificates are held by any Person other than the Depositortax withholding is required, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable deliver to the Owner Trustee and the Indenture Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clausebefore February 15, 2006, a letter certificate of an Authorized Officer in form and substance satisfactory to the Owner Trustee as to whether any such tax withholding is then required and, if required, and the procedures to be followed with respect thereto to comply with the requirements of the Code. The Accountants Administrator shall be required to update the letter in each instance that such certificate if any additional tax withholding is subsequently required or any previously required tax withholding shall no longer be required.
(vg) The Administrator shall perform the duties of the Administrator specified in Section 10.2 10.02 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 under the Trust AgreementAgreement or any other Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s 's opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity proposed action and the Owner Trustee shall not have withheld consent, which consent shall not be unreasonably withheld or delayed, or provided an alternative direction. For the purpose of the preceding sentence, "non-ministerial matters" shall include:
(i) the amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the Receivables);
(iii) the amendment, change or modification of the Basic Documents;
(iv) the appointment of successor Note Registrars, successor 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Basic Documents Documents, (ii) take any other action that the Issuer directs the Administrator not to take on its behalf or otherwise by law(iii) take any other action which may be construed as having the effect of varying the investment of the Securityholders.
Appears in 2 contracts
Samples: Administration Agreement (Wachovia Auto Owner Trust 2005-B), Administration Agreement (Wachovia Auto Owner Trust 2005-A)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture Note Depository Agreement and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documentsNote Depository Agreement. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action by the Issuer or the Owner Trustee is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documentsthe Indenture and the Note Depository Agreement. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Indenture and the Depository Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the duty to cause causing the Note Register to be kept and to give giving the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.42.04);
(iiB) preparing the notification to Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c5.04(d));
(iiiD) the preparation of preparing or obtaining of the documents and instruments required for the proper authentication of the Notes and delivery of delivering the same to the Indenture Trustee (Section 2.22.02);
(ivE) approving the preparationform and substance of an Opinion of Counsel or a representation letter of the transferee in connection with the transfer of the Class A-1 Notes (Section 2.04(b));
(F) directing the Indenture Trustee to retain from amounts otherwise distributable to the Noteholders sufficient funds for the payment of any tax that is legally owed by the Trust (Section 2.07(c));
(G) preparing, obtaining or and/or filing of the all instruments, opinions, opinions and certificates and other documents required for the release of the Collateral collateral (Section 2.9)2.09) ;
(vH) [reserved];
(vi) the duty to cause causing newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiI) directing the direction to the Paying Agents Indenture Trustee to deposit monies moneys with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiJ) the obtaining and preservation of preserving the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixK) the preparation of preparing and filing all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 3.05 of the Indenture, necessary to protect the Trust Estate (Section 3.53.05);
(xL) delivering the delivery of the Opinion required Opinions of Counsel on the Closing Date and the annual delivery of Opinions of Counselannually, in accordance with Section 3.6 3.06 of the Indenture, as to the Trust Estate, and delivering the annual delivery of the Officer’s Certificate Officers' Certificates and certain other statementsstatements as to compliance with the Indenture, in accordance with Section 3.9 3.09 of the Indenture, as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiM) the identification identifying to the Indenture Trustee in an Officer’s Officers' Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiN) the notification of notifying the Indenture Trustee and the Rating Agencies of a any Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiO) the preparation preparing and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xivP) the delivery of delivering notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) and each other default by the Servicer or the Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvQ) monitoring the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating (as defined in the Indenture) related thereto (Section 4.14.01);
(xviR) the compliance complying with any written directive of the Indenture Trustee with respect to the provision of relevant information and reasonable assistance with respect to the execution, delivery, filing and recordation of relevant transfer documentation and the delivery of related records and files, in connection with any sale by the Indenture Trustee of any portion of the Trust Estate in a commercially reasonable manner if an connection with any Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) preparing notice to Noteholders of any removal of the furnishing Indenture Trustee and the appointment of a successor Indenture Trustee for delivery to Noteholders by the successor Indenture Trustee (Section 6.08);
(T) preparing all written instruments required to confirm 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 6.08 and 6.10);
(U) providing to the Rating Agencies copies of any amendment or supplement to the Interest Rate Swap Agreement (Section 6.14(c));
(V) notifying the Swap Counterparty of any proposed amendment or supplement to any of the Basic Documents (Section 6.14(d));
(W) causing the Note Registrar to furnish to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiX) preparing and, after execution by the preparationIssuer and the Indenture Trustee, execution and filing with the Commission and the Indenture Trustee any applicable state agencies of documents required to be filed on a periodic basis with, with the Commission and any applicable state agencies (including any summaries thereof as may be required by rules and regulations prescribed bythereby), and providing such documents to the Commission and the transmission of such summaries, as necessary, Indenture Trustee for delivery to the Noteholders (Section 7.37.03);
(xixY) preparing and, after execution by the opening of one or more accounts Indenture Trustee, providing to the Indenture Trustee for delivery to Noteholders and filing with the Commission, any reports required by TIA Sections 313(a), (b) and (c); provided, that the Administrator will not be required to prepare reports required by TIA Sections 313(a)(1) and (a)(2) unless specifically directed in writing to do so by the Trust’s name, Indenture Trustee and the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel Indenture Trustee provides the Administrator with all information necessary to prepare such reports (Section 7.04);
(Z) preparing the related Issuer Orders and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3Section 8.04);
(xxAA) the preparation of an Issuing Entity preparing any Issuer Request and Officer’s Certificate Officers' Certificates and the obtaining of an Opinion any Opinions of Counsel and Independent Certificates, if necessary, Certificates necessary for the release of the Trust Estate as defined in the Indenture (Sections 8.4 8.05 and 8.58.06);
(xxiBB) the preparation of Issuing Entity preparing Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of any supplemental indentures and the mailing indentures, preparing notices to the Noteholders of notices with respect thereto and furnishing such notices to such supplemental indentures the Indenture Trustee for delivery to Noteholders (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiCC) the execution and delivery of preparing new Notes conforming to the provisions of any supplemental indenture indenture, as appropriate and delivering such Notes to the Owner Trustee for execution and to the Indenture Trustee for authentication (Section 9.69.07);
(xxiiiDD) the notification preparing forms of notices to Noteholders of any redemption of the Notes or the duty and furnishing such notices to cause the Indenture Trustee for delivery to provide such notification Noteholders (Section 10.210.02);
(xxivEE) the preparation of preparing or obtaining all Officer’s Officers' Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to Issuer or the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvFF) the preparation preparing and delivery of Officer’s delivering Officers' Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviGG) notifying the preparation Rating Agencies, upon any failure of the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(HH) preparing and delivering to the Indenture Trustee for delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiII) causing the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bii) Duties with Respect to the Trust.The Administrator also will:
(iA) In addition pay the Indenture Trustee from time to time the duties of reasonable compensation provided for in the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than Indenture with respect to Sections 11.14services 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);
(B) reimburse the Indenture Trustee upon its request for all reasonable expenses, 11.15 disbursements and 11.16 advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel) to the extent the Indenture Trustee is entitled to such reimbursement by the Issuer under the Indenture;
(C) indemnify the Indenture Trustee for, and hold it harmless against, any losses, liability or expense incurred without negligence or bad faith on the part of the Indenture Trustee, arising out of or in connection with the acceptance or administration of the trusts and duties contemplated by the Indenture, including the reasonable costs and expenses of defending itself against any claim or liability in connection therewith, to the extent the Indenture Trustee is entitled to such indemnification from the Issuer under the Indenture; and
(D) indemnify the Owner Trustee for, and hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Owner Trustee, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, the Indenture, the Note Depository Agreement or this Administration Agreement, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement to the extent the Owner Trustee is entitled to such indemnification under Section 8.02 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Toyota Auto Finance Receivables LLC), Administration Agreement (Toyota Auto Finance Receivables LLC)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Transaction Documents.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Transaction Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (all section references in this Section 1(a)(i) are to sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b))) or indicate on the Servicer Report that the Principal Amount is 0;
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office in New York, New York, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.93.09);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiS) the preparation, execution and filing with of reports required by the Commission and or under 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 the transmission of such summaries, as necessary, to the Noteholders TIA (Section 7.37.03);
(xixT) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxU) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiV) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiW) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiX) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivY) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvZ) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviAA) the notification of the Rating Agencies, of any merger or consolidation involving the Issuer, the Servicer, the Owner Trustee or the Indenture Trustee and upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiCC) the recording of the Indenture, if applicable (Section 11.1511.14).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture or the Related Agreements to Pooling and Servicing Agreement, pay the contraryIndenture Trustee's fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (disbursements and advances incurred or allocations of income) to an Owner 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 made by the Indenture Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from provision of the Issuing Entity Transaction Documents (including the reasonable compensation, expenses and shall bedisbursements of its agents and counsel), in the Administrator’s opinionexcept any such expense, no less favorable disbursement or advance as may be attributable to the Issuing Entity than would be available from unaffiliated parties.its negligence or bad faith;
(viiB) The Administrator hereby agrees to execute indemnify the Indenture Trustee and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on behalf their part, arising out of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.in connection with the
Appears in 2 contracts
Samples: Administration Agreement (Cit Equipment Collateral 2003-Ef1), Administration Agreement (NCT Funding Co LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2016-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2016-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2016-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2016-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2016-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2016-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2021-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2021-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2021-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2021-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2021-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2021-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2021-1), Administration Agreement (GM Financial Automobile Leasing Trust 2021-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining and preservation of the documents and instruments required for authentication of the Notes and delivery of the same Issuer’s qualifications to the Indenture Trustee do business (Section 2.23.4);
(iv) the preparation, obtaining or filing preparation of the instruments, opinions, certificates all supplements and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver amendments to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xv) the delivery of the Opinion of Counsel on the 2015-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivi) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiivii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2015-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2015-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiviii) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(ix) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xi) the delivery of the 2015-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2015-2 Closing Date (Section 3.23);
(xii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b4.1);
(xiii) the maintenance of books and records of the Issuer (Section 3.24);
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvixv) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee (Section 6.7 and 6.10);
(xvi) 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 respect to the sale resignation or removal of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and be continuing (Section 5.46.9);
(xvii) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i));
(xix) the opening of one or more accounts in filing with the Trust’s nameIndenture Trustee and the Commission such additional information, the preparation of Issuing Entity Orders, Officer’s Certificates documents and Opinions of Counsel and all other actions necessary reports with respect to investment compliance by the Issuer with the conditions and reinvestment covenants of funds in the Trust Accounts Indenture as may be required from time to time by the rules and regulations prescribed from time to time by the Commission (Sections 8.2 and 8.3Section 7.3(a)(ii));
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release furnishing of the Trust Estate as defined in Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(iii));
(xxi) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiii) 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 9.1 and 9.39.2);
(xxiixxiv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxv) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvi) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2015-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect The Fund hereby employs the Administrator to act as administrator and to furnish, or arrange for affiliates or others to furnish, the Indenture administrative services described below, subject to review by and the Depository overall control of the Board of Directors of the Fund (the “Directors”), for the period and on the terms and conditions set forth in this Agreement. The Administrator hereby accepts such employment and agrees during such period to render, or arrange for the rendering of, such services and to assume the obligations herein set forth in consideration for the reimbursement of its and its affiliates costs and expenses as provided for herein. The Administrator and its affiliates shall for all purposes herein be deemed to be independent contractors and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed agents of the Fund.
(b) The Administrator shall perform (or arrange for the performance by affiliates or others of) any and all administrative services, excluding investment advisory services, necessary for the operation of the Fund. In this regard, the Administrator shall provide the Fund with, among other things, administrative, professional, compliance and clerical services; necessary personnel, office space and facilities and equipment; preparation of its prospectuses, statements of additional information, proxy statements, stockholders’ reports and notices and other reports and filings made to and with the Securities and Exchange Commission and/or other regulators; administering stockholder accounts, handling stockholder relations and such other services as the Administrator, subject to review by the Directors, shall from time to time determine to be necessary or useful to perform its obligations under this Agreement. The Administrator shall perform all of its duties as Administrator and the duties also, on behalf of the Issuing Entity Fund, conduct relations with custodians, depositories, transfer agents, dividend disbursing agents, other stockholder servicing agents, accountants, attorneys, underwriters, brokers and the Trustee under the Indenture dealers, corporate fiduciaries, insurers, banks and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documentsother persons in any such other capacity deemed to be necessary or desirable. The Administrator shall monitor make quarterly or more frequent reports to the Directors of its performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee hereunder and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale furnish advice and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices recommendations with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption other aspects of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel business and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien affairs of the Indenture (Section 11.1(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, Fund as it shall determine to be desirable. Investment advisory services are provided to the duty of the Issuing Entity or the Trustee to performFund by Royce & Associates, prepareLLC, file or deliver in its capacity as investment adviser, pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants separate investment advisory agreement (the “AccountantsInvestment Advisory Agreement”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Royce Global Value Trust, Inc.), Administration Agreement (Royce Global Value Trust, Inc.)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2020-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2020-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2020-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2020-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2020-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2020-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2020-3), Administration Agreement (GM Financial Automobile Leasing Trust 2020-3)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin St. Xxxx, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2024-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2024-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2024-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2024-1 Exchange Note to the Indenture Trustee in St. Xxxx, Minnesota on the 2024-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2024-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2024-1), Administration Agreement (GM Financial Automobile Leasing Trust 2024-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2022-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2022-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2022-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2022-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2022-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2022-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2022-2), Administration Agreement (GM Financial Automobile Leasing Trust 2022-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2020-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2020-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2020-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2020-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2020-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2020-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2020-1), Administration Agreement (GM Financial Automobile Leasing Trust 2020-1)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Transaction Documents.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Transaction Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (all section references in this Section 1(a)(i) are to sections of the Indenture):
(iA) the preparation of Issuer Orders directing the authentication of Notes (Section 2.02) and 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b))) or indication on the Monthly Servicer's Report that the Principal Amount is 0;
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office in New York, New York, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral, other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.08(a)(F) and 3.93.08(b)(F));
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.06(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale Pooling and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d)3.12);
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b3.09(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiS) the preparation, execution and filing with of reports required by the Commission and or under 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 the transmission of such summaries, as necessary, to the Noteholders TIA (Section 7.37.03);
(xixT) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxU) the preparation of an Issuing Entity Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates's Certificate, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 and 8.5Section 8.04);
(xxiV) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiW) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiX) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivY) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel 's Certificates and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvZ) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien notification of the Rating Agencies, of any merger or consolidation involving the Issuer, the Servicer, the Owner Trustee or the Indenture (Section 11.1(b))Trustee and upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(xxviAA) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiBB) the recording of the Indenture, if applicable (Section 11.1511.14).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator agrees to:
(A) except as otherwise expressly provided in this Agreement the Indenture or the Related Agreements Pooling and Servicing Agreement, pay the Indenture Trustee's fees and 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 Transaction Documents (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith, or willful misconduct;
(B) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence, bad faith, or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement and this Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement (the indemnities provided by this section shall include, without limitation, an indemnity as described above with respect to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee 's obligations in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) favor 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.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of under Section 5.5 and Section 5.6(a) 8.02 of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the extent any such obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Owner Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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 requiredremain unpaid).
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Cit Funding Co, LLC), Administration Agreement (CIT Equipment Collateral 2005-Ef1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2019-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2019-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2019-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2019-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2019-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2019-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Wilmington, Delaware, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement, ;
(N) the taking duty to cause the Servicer to comply with Article Five and Article Nine of all reasonable steps available to remedy such failure the Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);the
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2005-3), Administration Agreement (Harley-Davidson Motorcycle Trust 2005-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2023-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2023-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2023-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2023-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2023-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c)2.05);
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2023-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2023-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2023-A Servicing AgreementAgreement with respect to the 2023-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2023-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services; such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; the Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees and the fees of agents and experts) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2023-A Basic Documents or in connection with any proceedings brought by the Indenture Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2023-A Basic Documents; the Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity; failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder; the Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel; and neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith; the provisions of this Section 1.02(b)(iii) shall survive the termination of this Agreement.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2023-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2023-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2023-A Collateral (including the Related Agreements2023-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2023-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2023-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2023-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state State income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2023-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2023-A Leases or 2023-A Vehicles);
(iii) the amendment, change, modification or waiver of any 2023-A Basic Document;
(iv) 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, any Paying Agent or the Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2023-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2023-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2023-A), Administration Agreement (Mercedes-Benz Auto Lease Trust 2023-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2018-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2018-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2018-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2018-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2018-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2018-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2018-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2018-A Servicing AgreementAgreement with respect to the 2018-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2018-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2018-A Basic Documents or in connection with any proceedings brought by the Indenutre Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2018-A Basic Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2018-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2018-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2018-A Collateral (including the Related Agreements2018-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2018-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2018-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2018-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2018-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2018-A Leases or 2018-A Vehicles);
(iii) the amendment, change, modification, or waiver of any 2018-A Basic Document;
(iv) 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2018-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2018-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2018-A), Administration Agreement (Mercedes-Benz Auto Lease Trust 2018-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor, the Swap Counterparty and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Noteholders, the Swap Counterparty and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders and the Swap Counterparty of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) 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;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2008-1), Administration Agreement (CarMax Auto Owner Trust 2008-2)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders [and the [Swap][Cap] Counterparty] of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies[, the [Swap][Cap] Counterparty] and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency, the [Swap][Cap] Counterparty] and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; [and]
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement[.][; and]
(D) indemnify the Underlying Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Underlying Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.]
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Customer Funding Corp.), Administration Agreement (Harley-Davidson Customer Funding Corp.)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2017-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2017-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2017-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2017-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2017-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2017-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2017-2), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture Depository Agreement and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documentsDepository Agreement. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documentsthe Indenture and the Depository Agreement. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates certificates, notices and opinions as it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Indenture and the Depository Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the preparation of (or obtaining of) the documents and instruments required for issuance of the Notes (if not prepared or obtained by the Issuer), including the Officer's Issuance Certificate and Opinion of Counsel to be delivered in connection with the issuance of each series of Notes, the coordination with the holders of the Revolving Notes of all borrowings under the Revolving Notes and all matters relating to such borrowings, and the preparation of (or obtaining of) the documents and instruments required for authentication of the Notes and delivery of the same to the Authentication Agent (Sections 2.1 and 2.2);
(B) 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);
(iiC) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special of each series of the final principal payment dates, if any on their Notes (Section 2.7(c));
(iii) 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);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.9);
(vE) [reserved]the preparation of Definitive Term Notes and arranging the delivery thereof (Section 2.12);
(viF) the maintenance of an office in the place or places specified in the related Officer's Issuance Certificate for registration of transfer or exchange of Notes (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiI) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixJ) the preparation of all supplements, amendments, financing statements, continuation statements, assignments, certificates, instruments of further assurance and other instruments, in accordance with Section 3.5 (a) of the Indenture, necessary to protect the Trust Estate (Section 3.53.5(a));
(xK) the delivery of the Opinion of Counsel on the Initial Closing Date and the annual delivery of Opinions of CounselDate, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statementsOfficers' Certificate, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiL) the identification to the Indenture Trustee in an Officer’s Officers' Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiM) the notification of the Indenture Trustee Trustee, and the Rating Agencies of a Servicer Servicing Default pursuant to under the Trust Sale and Servicing Agreement and, if such Servicer Servicing Default arises from the failure of the Servicer to perform any of its duties under the Trust Sale and Servicing Agreement or the Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiN) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b3.11(b));
(xivO) the delivery of notice to the Indenture Trustee Trustee, and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each Servicing Default, any Insolvency Event with respect to the Seller, each default by on the part of the Seller or the Servicer or Seller of their respective obligations under the Trust Sale and Servicing Agreement and (c) each default by CNHICA on the part of GMAC or the Servicer of their respective obligations under the Purchase Pooling and Servicing Agreement (Section 3.19);
(xvP) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and Indenture, the preparation of an Officer’s Certificate and Officers' Certificate, the obtaining of the Opinion of Counsel and the and, if necessary, an Independent Certificate relating thereto (Section 4.1);
(xviQ) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.4(a));
(xviiR) 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);
(S) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiT) the preparationpreparation and, after execution and by the Issuer (if applicable), the filing with the Commission and the Indenture Trustee of and any other party named in an Officer's Issuance Certificate any applicable reports or 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 the transmission of specified in such summaries, as necessary, to the Noteholders Officer's Issuance Certificate (Section 7.3);
(xixU) the notification of the Indenture Trustee of the listing or delisting of the Notes of any series on any stock exchange, if and when such Notes are so listed or delisted (Section 7.4(a));
(V) the opening of one or more accounts in the Trust’s Issuer's name, the preparation of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Designated Accounts (Sections 8.2 and 8.3);
(xxW) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation of Issuing Entity 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);
(xxiiY) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.5);
(xxiiiZ) the notification of Noteholders Noteholders, and the Rating Agencies of the redemption of the any Notes subject to redemption or the duty to cause the Indenture Trustee to provide such notification (Section Sections 10.1 and 10.2);
(xxivAA) the preparation of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Officers' Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) 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 (Section 11.4);
(DD) 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
(xxviiEE) the recording of the Indenture, if applicable applicable, and the obtaining of an Opinion of Counsel as required pursuant to Section 11.14 (Section 11.1511.14).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this The Administrator will perform those payment and indemnity obligations of the Servicer under Section 3.02 of the Pooling and Servicing Agreement or and Section 7.1 of the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Trust Sale and Servicing Agreement in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) Servicer fails to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any perform such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provisionobligations.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Wholesale Auto Receivables Corp), Administration Agreement (Wholesale Auto Receivables Corp)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2013-1), Administration Agreement (Harley-Davidson Motorcycle Trust 2013-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2016-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2016-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2016-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2016-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2016-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2016-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2016-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the 2016-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2016-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2016-A Basic Documents or in connection with any proceedings brought by the Indenutre Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2016-A Basic Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2016-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2016-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2016-A Collateral (including the Related Agreements2016-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2016-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2016-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2016-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2016-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2016-A Leases or 2016-A Vehicles);
(iii) the amendment, change, modification, or waiver of any 2016-A Basic Document;
(iv) 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2016-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2016-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: 2016 a Administration Agreement (Mercedes-Benz Auto Lease Trust 2016-A), Administration Agreement (Mercedes-Benz Auto Lease Trust 2016-A)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Wilmington, Delaware, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement, ;
(N) the taking duty to cause the Servicer to comply with Article Five and Article Nine of all reasonable steps available to remedy such failure the Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders and the Swap Counterparty of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Swap Counterparty of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders and the Swap Counterparty of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2008-1), Administration Agreement (Harley-Davidson Motorcycle Trust 2007-3)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2021-B Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2021-B Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2021-B Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2021-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2021-B Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2021-B Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2021-B Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2021-B Servicing AgreementAgreement with respect to the 2021-B Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2021-B Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services; such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; the Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees and the fees of agents and experts) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2021-B Basic Documents or in connection with any proceedings brought by the Indenture Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2021-B Basic Documents; the Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity; failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder; the Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel; and neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith; the provisions of this Section 1.02(b)(iii) shall survive the termination of this Agreement.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2021-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2021-B Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2021-B Collateral (including the Related Agreements2021-B Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2021-B Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2021-B Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2021-B Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state State income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2021-B Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2021-B Leases or 2021-B Vehicles);
(iii) the amendment, change, modification or waiver of any 2021-B Basic Document;
(iv) 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, any Paying Agent or the Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2021-B Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2021-B Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2021-B), Administration Agreement (Mercedes-Benz Auto Lease Trust 2021-B)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2016-B Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2016-B Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2016-B Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2016-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2016-B Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2016-B Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2016-B Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the 2016-B Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2016-B Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2016-B Basic Documents or in connection with any proceedings brought by the Indenutre Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2016-B Basic Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2016-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2016-B Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2016-B Collateral (including the Related Agreements2016-B Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2016-B Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2016-B Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2016-B Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2016-B Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2016-B Leases or 2016-B Vehicles);
(iii) the amendment, change, modification, or waiver of any 2016-B Basic Document;
(iv) 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2016-B Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2016-B Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2016-B), Administration Agreement (Mercedes-Benz Auto Lease Trust 2016-B)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2018-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2018-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2018-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2018-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2018-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2018-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GM Financial Automobile Leasing Trust 2018-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and Administrator, including its duties under the Asset Representations Review Agreement, and, except as specifically excluded herein, agrees to perform all the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementIssuer Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Issuer Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Issuer Basic Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of, all such documents, reports, notices, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Issuer Basic Documents. Further, on behalf of the Issuer, the Administrator shall perform the duties and obligations related to a transition from the then-current Benchmark, including but not limited to the determination of a Benchmark Transition Event and its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes pursuant to the terms of the Indenture. The Administrator shall perform such calculations (including any calculations related to a transition from the then-current Benchmark pursuant to the terms of the Indenture), and shall prepare for execution by the Issuer or the Owner Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity Issuer or the either Trustee to prepare, file or deliver pursuant to such documentsthe Issuer Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing actions as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.13);
(v) [reserved];
(viii) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiiii) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiiv) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which where such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate Estate, including all licenses required under the (A) Maryland Vehicle Sales Finance Act and (B) Pennsylvania Motor Vehicle Sales Finance Act (Section 3.43.04);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xvi) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiviii) the notification preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of a each Servicer Default pursuant to the Sale and Servicing Agreement Termination Event and, if such Servicer Default Termination Event arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiix) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivx) the duty to cause the Servicer to comply with the Sale and Servicing Agreement (Section 3.12);
(xi) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer Servicer, the Seller or Seller the Depositor under the Sale and Servicing Agreement and (c) each default or by CNHICA the Seller or the Purchaser under the Receivables Purchase Agreement (Section 3.193.17);
(xvxii) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xvixiii) the compliance with any written directive Section 5.04 of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviixiv) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(xv) 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 the Indenture Trustee or any co‑trustee or separate trustee (Sections 6.08 and 6.10);
(xvi) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiixvii) the preparationpreparation and, after execution and by the Issuer, the filing with the Commission 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, by the Commission and the transmission of such summaries, as necessary, to the Noteholders (Section 7.37.03);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Receivables Trust 2019-1), Administration Agreement (Mercedes-Benz Auto Receivables Trust 2019-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2017-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2017-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2017-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2017-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2017-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2017-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.03);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders and the Swap Counterparty, if any (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).;
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel; provided, that reimbursement for expenses and disbursements of any legal counsel to the duties of Indenture Trustee and any Separate Trustee shall be subject to any limitations separately agreed upon before the date hereof between the Administrator set forth aboveand the Indenture Trustee and any Separate Trustee), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any Expenses (as defined below) incurred without negligence, bad faith or the Trustee willful misconduct on their part, arising out of or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the foregoing and as are expressly requested Indenture. The benefits under this section shall survive the resignation or termination of the Indenture Trustee or the termination of this Agreement;
(D) pay the Owner Trustee compensation for services rendered by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) 8.01 of the Trust Agreement with respect toand reimburse the Owner Trustee for its reasonable and documented expenses including the reasonable and documented compensation, among other thingsexpenses and disbursements of such agents, accounting representatives, experts and reports to Owners; provided, however, that counsel as the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed may employ in connection with the resignation or removal exercise and performance of the Trustee, its rights and any other duties expressly required to be performed by the Administrator under the Trust Agreement.; and
(viE) In carrying out indemnify the foregoing duties or Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any of its and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable amounts owed to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver Owner Trustee pursuant to the Basic Documents Trust Agreement) of any kind and nature whatsoever (collectively, “Expenses”) which may at any time be imposed on, incurred by, or otherwise by law.asserted against the Owner
Appears in 2 contracts
Samples: Administration Agreement (World Omni Auto Receivables Trust 2010-A), Administration Agreement (World Omni Auto Receivables Trust 2010-A)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.03);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders and the Swap Counterparty, if any (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and indentures, the mailing to the Noteholders and delivery to the Rating Agencies of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).;
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel; provided, that reimbursement for expenses and disbursements of any legal counsel to the duties of Indenture Trustee and any Separate Trustee shall be subject to any limitations separately agreed upon before the date hereof between the Administrator set forth aboveand the Indenture Trustee and any Separate Trustee), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any and all loss, liability, claim, damage or the Trustee expense (including attorneys’ fees) incurred without negligence, bad faith or shall cause the preparation by other appropriate persons willful misconduct on their part, arising out of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the foregoing and as are expressly requested Indenture. The benefits under this section shall survive the resignation or termination of the Indenture Trustee or the termination of this Agreement;
(D) pay the Owner Trustee compensation for services rendered by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) 8.01 of the Trust Agreement with respect toand reimburse the Owner Trustee for its reasonable and documented expenses including the reasonable and documented compensation, among other thingsexpenses and disbursements of such agents, accounting representatives, experts and reports to Owners; provided, however, that counsel as the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed may employ in connection with the resignation or removal exercise and performance of the Trustee, its rights and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms reimbursement for expenses and disbursements of any such transactions or dealings legal counsel to the Owner Trustee in connection with the initial Closing Date shall be subject to limitations, if any, separately agreed upon before the date hereof between the Depositor (or any Affiliate thereof) and the Owner Trustee; and
(E) indemnify the Owner Trustee (including in accordance with its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any directions received from the Issuing Entity and shall beall liabilities, in the Administrator’s opinionobligations, no less favorable losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other amounts owed to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver Owner Trustee pursuant to the Trust Agreement) of any kind and nature whatsoever (collectively, “Expenses”) which may at any time be imposed on, incurred by, or asserted against the Owner Trustee in any way relating to or arising out of the Basic Documents Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or otherwise by lawthe action or inaction of the Owner Trustee, except only that the Administrator shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.
Appears in 2 contracts
Samples: Administration Agreement (World Omni Auto Receivables Trust 2011-B), Administration Agreement (World Omni Auto Receivables Trust 2011-B)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2018-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2018-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2018-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2018-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2018-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2018-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2018-2), Administration Agreement (GM Financial Automobile Leasing Trust 2018-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2017-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2017-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2017-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2017-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2017-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2017-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2017-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2017-A Servicing AgreementAgreement with respect to the 2017-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2017-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2017-A Basic Documents or in connection with any proceedings brought by the Indenutre Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2017-A Basic Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2017-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2017-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2017-A Collateral (including the Related Agreements2017-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2017-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2017-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2017-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2017-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2017-A Leases or 2017-A Vehicles);
(iii) the amendment, change, modification, or waiver of any 2017-A Basic Document;
(iv) 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2017-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2017-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: Administration Agreement (Mercedes-Benz Auto Lease Trust 2017-A), Administration Agreement (Mercedes-Benz Auto Lease Trust 2017-A)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture;
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement; and
(D) indemnify the Underlying Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Underlying Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2016-A), Administration Agreement (Harley-Davidson Motorcycle Trust 2016-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin St. Xxxx, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2024-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2024-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2024-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2024-2 Exchange Note to the Indenture Trustee in St. Xxxx, Minnesota on the 2024-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2024-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2024-2), Administration Agreement (GM Financial Automobile Leasing Trust 2024-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Agreements.
a. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Depository AgreementAgreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documents. Depository Agreements.
b. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documents. the Indenture and the Depository Agreements.
c. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documents. the Indenture and the Depository Agreements.
d. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(i1) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii2) 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);
(iv3) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of property from the Collateral lien of the Indenture (Section 2.9);
(v4) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.12);
(vi5) the maintenance of an office in the Borough of Manhattan, City of New York, for registration of transfer or exchange of Notes (Section 3.2);
(6) 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);
(vii7) the direction to the Paying Agents Indenture Trustee to deposit monies with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viii) 8) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ix9) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(x10) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi11) the identification to the Indenture Trustee in an Officer’s 's Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii12) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii13) the preparation and obtaining of documents and instruments required for the release transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xiv14) 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);
(15) the delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or the Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xv16) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion Opinions of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi17) the monitoring of the Issuer'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);
(18) 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 Issuer is taking or proposes to take with respect thereto (Section 5.1);
(19) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii20) 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);
(21) 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);
(22) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii23) the preparationpreparation and, after execution and by the Issuer, the filing with the Commission 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);
(xix24) the opening preparation and delivery of one or more accounts in the Trust’s name, the preparation of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment reinvestment, to the extent permitted, of funds in the Trust Accounts such accounts (Sections 8.2 and 8.3);
(xx25) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxi26) the preparation of Issuing Entity 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);
(xxii27) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii28) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv29) the preparation and delivery of all Officer’s Certificates, 's Certificates and the obtaining of Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv30) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxvi31) 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);
(32) 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
(xxvii33) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Bond Securitization LLC), Administration Agreement (Amsouth Auto Receivables LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2021-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2021-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2021-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2021-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2021-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2021-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2021-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2021-A Servicing AgreementAgreement with respect to the 2021-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2021-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services; such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; the Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees and the fees of agents and experts) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2021-A Basic Documents or in connection with any proceedings brought by the Indenture Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2021-A Basic Documents; the Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity; failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder; the Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel; and neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith; the provisions of this Section 1.02(b)(iii) shall survive the termination of this Agreement.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2021-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2021-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2021-A Collateral (including the Related Agreements2021-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2021-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2021-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2021-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state State income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2021-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2021-A Leases or 2021-A Vehicles);
(iii) the amendment, change, modification or waiver of any 2021-A Basic Document;
(iv) 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, any Paying Agent or the Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2021-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2021-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: 2021 a Administration Agreement (Mercedes-Benz Auto Lease Trust 2021-A), 2021 a Administration Agreement (Mercedes-Benz Auto Lease Trust 2021-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account, the Reserve Account and the Secondary Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2004-2), Administration Agreement (Carmax Auto Owner Trust 2005-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2016-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2016-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2016-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2016-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2016-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2016-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2020-B Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2020-B Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2020-B Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2020-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2020-B Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2020-B Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2020-B Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2020-B Servicing AgreementAgreement with respect to the 2020-B Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) the preparation of Issuer Orders and the obtaining of Opinions of Counsel and Officer’s Certificates with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2020-B Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses (including extraordinary out-of-pocket expenses), disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services; such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts; the Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees and the fees of agents and experts) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim, loss, expense or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2020-B Basic Documents or in connection with any proceedings brought by the Indenture Trustee to enforce the indemnification obligations of the Issuer under the Indenture or under any of the other 2020-B Basic Documents; the Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity; failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder; the Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel; and neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith; the provisions of this Section 1.02(b)(iii) shall survive the termination of this Agreement.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2020-B Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2020-B Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2020-B Collateral (including the Related Agreements2020-B Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2020-B Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Certificateholder as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2020-B Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Certificateholder of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2020-B Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Certificateholder; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner the Certificateholder to prepare its federal and state State income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iiSections 1.02(d) and (iiie) by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2020-B Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2020-B Leases or 2020-B Vehicles);
(iii) the amendment, change, modification or waiver of any 2020-B Basic Document;
(iv) 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, any Paying Agent or the Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2020-B Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2020-B Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: 2020 B Administration Agreement (Mercedes-Benz Auto Lease Trust 2020-B), 2020 B Administration Agreement (Mercedes-Benz Auto Lease Trust 2020-B)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin St. Xxxx, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2023-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2023-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2023-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2023-3 Exchange Note to the Indenture Trustee in St. Xxxx, Minnesota on the 2023-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2023-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2023-3), Administration Agreement (GM Financial Automobile Leasing Trust 2023-3)
Duties of the Administrator. (a) Duties with Respect The Fund hereby employs the Administrator to act as administrator and to furnish, or arrange for affiliates or others to furnish, the Indenture administrative services described below, subject to review by and the Depository overall control of the Board of Directors of the Fund (the "Directors"), for the period and on the terms and conditions set forth in this Agreement. The Administrator hereby accepts such employment and agrees during such period to render, or arrange for the rendering of, such services and to assume the obligations herein set forth in consideration for the reimbursement of its and its affiliates costs and expenses as provided for herein. The Administrator and its affiliates shall for all purposes herein be deemed to be independent contractors and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed agents of the Fund.
(b) The Administrator shall perform (or arrange for the performance by affiliates or others of) any and all administrative services, excluding investment advisory services, necessary for the operation of the Fund. In this regard, the Administrator shall provide the Fund with, among other things, administrative, professional, compliance and clerical services; necessary personnel, office space and facilities and equipment; preparation of its prospectuses, statements of additional information, proxy statements, stockholders’ reports and notices and other reports and filings made to and with the Securities and Exchange Commission and/or other regulators; administering stockholder accounts, handling stockholder relations and such other services as the Administrator, subject to review by the Directors, shall from time to time determine to be necessary or useful to perform its obligations under this Agreement. The Administrator shall perform all of its duties as Administrator and the duties also, on behalf of the Issuing Entity Fund, conduct relations with custodians, depositories, transfer agents, dividend disbursing agents, other stockholder servicing agents, accountants, attorneys, underwriters, brokers and the Trustee under the Indenture dealers, corporate fiduciaries, insurers, banks and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documentsother persons in any such other capacity deemed to be necessary or desirable. The Administrator shall monitor make quarterly or more frequent reports to the Directors of its performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee hereunder and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale furnish advice and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices recommendations with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption other aspects of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel business and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien affairs of the Indenture (Section 11.1(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, Fund as it shall determine to be desirable. Investment advisory services are provided to the duty of the Issuing Entity or the Trustee to performFund by Royce & Associates, prepareLP (formerly Royce & Associates, file or deliver LLC), in its capacity as investment adviser, pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants separate investment advisory agreement (the “AccountantsInvestment Advisory Agreement”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Royce Value Trust Inc), Administration Agreement (Royce Micro-Cap Trust, Inc /Md/)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.03);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders and the Swap Counterparty, if any (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and indentures, the mailing to the Noteholders and delivery to the Rating Agencies of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).;
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel; provided, that reimbursement for expenses and disbursements of any legal counsel to the duties of Indenture Trustee and any Separate Trustee shall be subject to any limitations separately agreed upon before the date hereof between the Administrator set forth aboveand the Indenture Trustee and any Separate Trustee), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any Expenses (as defined below) incurred without negligence, bad faith or the Trustee willful misconduct on their part, arising out of or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the foregoing and as are expressly requested Indenture. The benefits under this section shall survive the resignation or termination of the Indenture Trustee or the termination of this Agreement;
(D) pay the Owner Trustee compensation for services rendered by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) 8.01 of the Trust Agreement with respect toand reimburse the Owner Trustee for its reasonable and documented expenses including the reasonable and documented compensation, among other thingsexpenses and disbursements of such agents, accounting representatives, experts and reports to Owners; provided, however, that counsel as the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed may employ in connection with the resignation or removal exercise and performance of the Trustee, its rights and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms reimbursement for expenses and disbursements of any such transactions or dealings legal counsel to the Owner Trustee in connection with the initial Closing Date shall be subject to any limitations separately agreed upon before the date hereof between the Depositor (or any Affiliate thereof) and the Owner Trustee; and
(E) indemnify the Owner Trustee (including in accordance with its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any directions received from the Issuing Entity and shall beall liabilities, in the Administrator’s opinionobligations, no less favorable losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other amounts owed to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver Owner Trustee pursuant to the Trust Agreement) of any kind and nature whatsoever (collectively, “Expenses”) which may at any time be imposed on, incurred by, or asserted against the Owner Trustee in any way relating to or arising out of the Basic Documents Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or otherwise by lawthe action or inaction of the Owner Trustee, except only that the Administrator shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.
Appears in 2 contracts
Samples: Administration Agreement (World Omni Auto Receivables Trust 2011-A), Administration Agreement (World Omni Auto Receivables Trust 2011-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2020-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2020-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2020-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2020-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2020-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2020-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2020-2), Administration Agreement (GM Financial Automobile Leasing Trust 2020-2)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of Noteholders duty to notify each Rating Agency and the Indenture Trustee of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.01);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in accordance with any provision of the event that Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any withholding tax is imposed such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the Trust’s payments acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture;
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or allocations expense incurred without negligence or bad faith on their part, arising out of income) to an Owner as or in connection with the acceptance or administration of the transactions contemplated in Section 5.2(c) of by the Trust Agreement. Any such notice shall specify , including the amount reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any withholding tax required to be withheld by of their powers or duties under the Trustee pursuant to such provision.Trust Agreement; and
(iiiD) Notwithstanding anything in this Agreement or maintain the Related Agreements to the contrary, the Administrator shall be responsible for performance effectiveness of all of the duties Issuer’s licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in connection with the Indenture and the transactions contemplated thereby until the lien and security interest of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants shall be required to update the letter in each instance that any additional tax withholding is subsequently required or any previously required tax withholding Indenture shall no longer be required.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be effect in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesterms thereof.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2019-A), Administration Agreement (Harley-Davidson Motorcycle Trust 2019-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2021-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2021-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2021-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2021-2 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2021-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2021-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2021-2), Administration Agreement (GM Financial Automobile Leasing Trust 2021-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2016-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2016-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2016-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2016-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2016-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2016-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Depository Agreement. In addition, the Administrator shall consult with the Trustee regarding the duties of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee Trustee, the Counterparty and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee Trustee, the Counterparty and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA CNHCA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (CNH Equipment Trust 2006-B), Administration Agreement (CNH Equipment Trust 2007-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2021-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2021-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2021-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2021-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2021-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2021-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2021-3), Administration Agreement (GM Financial Automobile Leasing Trust 2021-3)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b));
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office in Wilmington, Delaware, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.93.09);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixS) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxT) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiU) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiV) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiW) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivX) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvY) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviZ) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(AA) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiBB) the recording of the Indenture, if applicable (Section 11.1511.14).
(bii) Duties with Respect to the Trust.The Administrator will:
(iA) In addition to except as otherwise expressly provided in the duties Indenture or the Sale and Servicing Agreement, pay the Indenture Trustee's fees and 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 Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Administrator shall perform Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the duties and obligations acceptance or administration of the Issuing Entity transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Asset Representations Review Agreement Indenture; and
(C) indemnify the Owner Trustee and shall perform such calculationsits agents for, and shall prepare for execution hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Issuing Entity Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the Trustee exercise or shall cause performance of any of their powers or duties under the preparation by other appropriate persons of all such documentsTrust Agreement (and including without limitation, reports, filings, instruments, certificates and opinions, an indemnity as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than described above with respect to Sections 11.14, 11.15 and 11.16 the Trust Depositor's obligations in favor of the Owner Trustee under Section 8.02 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Heller Funding Corp), Administration Agreement (Heller Funding Corp Ii)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2019-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2019-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2019-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2019-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2019-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2019-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GMF Leasing LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. DUTIES WITH RESPECT TO THE TRUST RELATED AGREEMENTS.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Depository AgreementTrust Related Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer under the Trustee under such documentsTrust Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s Issuer's duties under such documentsthe Trust Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of or entities of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Trust Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same direction to the Indenture Trustee (Section 2.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty by Issuer Order to cause newly appointed deposit moneys with Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with other than the Indenture Trustee (Section 3.39.02);
(viiiB) the obtaining and preservation administration of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.15.01);
(xviC) the compliance with any written directive preparation and delivery of notice to Bondholders of the removal of the Indenture Trustee with respect to and the sale appointment of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing successor Indenture Trustee (Section 5.47.10);
(xviiD) the furnishing to preparation and, after execution by the Indenture Trustee of Issuer, the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 Bondholders (Section 7.38.04);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xxE) the preparation of an Issuing Entity Request Issuer Order and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent CertificatesCounsel, if necessary, for the release of property of the Trust Estate as defined in the Indenture (Sections 8.4 4.05 and 8.54.06);
(xxiF) the preparation of Issuing Entity Orders Issuer Requests and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Bondholders of notices with respect to such supplemental indentures (Sections 9.1, 9.2 10.01 and 9.310.02);
(xxiiG) the execution and delivery of new Notes Bonds conforming to any supplemental indenture (Section 9.610.06);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvH) the preparation and delivery of Issuer Order and Officer’s 's Certificates and the obtaining providing an Opinion of Independent CertificatesCounsel, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b)Sections 4.04, 4.06 and 4.07);
(xxviI) the preparation payment of all expenses in connection with the issuance of the Bonds (Section 7.07);
(J) the redemption of the Bonds and delivery the related notice to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment (Sections 11.01 and notice provisions (Section 11.611.02); and
(xxviiK) the recording furnishing of names and addresses of the Indenture, if applicable Bondholders to the Indenture Trustee (Section 11.158.01).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything the Administrator will:
(A) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any losses, liability or expense, including reasonable attorneys fees and expenses, incurred without willful misconduct, negligence, or bad faith on their part, arising out of the willful misconduct, negligence or bad faith of the Administrator in the performance of the transactions contemplated by this Agreement Agreement; and
(B) indemnify the Issuer and the Owner Trustee and their respective agents for, and hold them harmless against, any losses, liability or expense, including reasonable attorneys fees and expenses, incurred without negligence, willful misconduct or bad faith on their part, arising out of the Related Agreements to willful misconduct, negligence or bad faith of the contraryAdministrator in the performance of the transactions contemplated by this Agreement; PROVIDED, if any Certificates are held by any Person other than the DepositorHOWEVER, that the Administrator shall not be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by indemnify either the Indenture Trustee, the Issuer or the Owner Trustee pursuant to such provision.
Subsection (iiiii)(A) Notwithstanding anything in this Agreement or (B) so long as the Administrator has acted pursuant to the instructions of the Owner Trustee or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be Owners in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesSubsection (c) of Section 1 of this Agreement.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (National Collegiate Trust 1996-S2), Administration Agreement (National Collegiate Trust 1996-S2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin St. Xxxx, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2024-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2024-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2024-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2024-3 Exchange Note to the Indenture Trustee in St. Xxxx, Minnesota on the 2024-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2024-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2024-3), Administration Agreement (GM Financial Automobile Leasing Trust 2024-3)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Agreement2012-A Basic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe 2012-A Basic Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe 2012-A Basic Documents. The Administrator shall perform such calculations and shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of Persons of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe 2012-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2012-A Basic Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.05(a));
(iii) the preparation determination of or obtaining whether the requirements of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee UCC Section 8-401 are met (Section 2.22.05(b));
(iv) the preparationpreparation of an Issuer Order requesting the Indenture Trustee to authenticate and deliver replacement Notes in lieu of mutilated, obtaining destroyed, lost or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral stolen Notes (Section 2.92.06);
(v) [reserved]the duty to cause the Indenture Trustee to release property from the Lien of the Indenture (Section 2.13);
(vi) the direction of the Indenture Trustee to appoint one or more Authenticating Agents (Section 2.15);
(vii) the duty to cause the payment of all principal and interest to the Noteholders (Section 3.01);
(viii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes, and where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served (Section 3.02);
(ix) the duty to cause newly appointed Note Paying Agents, if any, to execute and deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viix) the direction to the Paying Agents Indenture Trustee to deposit monies monies, subject to Section 1.02(d), with Note Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiixi) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixxii) the preparation of all supplements, amendments, supplements and amendments to the Indenture and the preparation and filing of all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xxiii) the delivery of the Opinion of Counsel on the 2012-A Closing Date (and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with ) (Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.93.06);
(xixiv) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture Indenture, if other than the Servicer or Administrator (Section 3.7(b3.07(b));
(xiixv) the prompt written notification of the Indenture Trustee and the Rating Agencies of a each Event of Default under the Indenture and Exchange Note Servicer Event of Default pursuant to under the Sale and 2012-A Servicing Agreement and, if such Exchange Note Servicer Event of Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the 2012-A Collateral, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(d), 3.16 and 5.01);
(xiiixvi) the delivery of any Officer’s Certificate and the Opinion of Counsel in connection with any consolidation or merger of the Issuer or any conveyance or transfer of any of the Issuer’s assets (Section 3.09);
(xvii) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xivxviii) the delivery preparation of notice 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 the Indenture Trustee or any co-trustee or separate trustee and the Rating Agencies appointment of a successor Indenture Trustee (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale Sections 6.08 and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.196.10);
(xvxix) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive furnishing of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.37.01);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and duty to cause the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for Servicer to deliver the release of the Trust Estate as defined in the Indenture Monthly Investor Report (Sections 8.4 and 8.5Section 8.02);
(xxi) the preparation of Issuing Entity an Issuer Request for the release of the Trust Estate (Section 8.05(c));
(xxii) 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 as required by the Indenture with respect to such supplemental indentures (Sections 9.1, 9.2 9.01 and 9.39.02);
(xxiixxiii) the preparation and execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiixxiv) the notification duty to cause the deposit of Noteholders an amount equal to the Note Redemption Price into the 2012-A Exchange Note Collection Account upon redemption of Notes (Section 10.01);
(xxv) the duty to notify each Noteholder of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; and
(xxvxxvii) 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(b11.01(b));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect The Administrator shall:
(i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the Trustcompensation for a trustee of an express trust);
(ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(iii) in accordance with Section 6.07 of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee and reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Administrator shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture or under any of the other 2012-A Basic Documents. The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder. The Administrator shall defend any such claim, and the Indenture Trustee may have separate counsel, and the Administrator shall pay the fees and expenses of such counsel. Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations (i) execute on behalf of the Issuing Entity under Issuer or the Asset Representations Review Agreement Owner Trustee and shall (ii) perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of all such documents, notices, reports, filings, instruments, certificates and opinions that the Issuer or the Owner Trustee are required to prepare, file or deliver pursuant to the 2012-A Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that the Issuer or the Owner Trustee are required to take pursuant to the 2012-A Basic Documents. In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the Administrator and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A, appointing the Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the purpose of executing on behalf of the Owner Trustee and the Issuer all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the 2012-A Collateral (including the Related Agreements2012-A Basic Documents) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements other 2012-A Basic Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c5.01(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements other 2012-A Basic Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.01(a) of the Trust Agreement with respect toto notifying the Owner of the final distribution of all monies or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture, among other things, the 2012-A Servicing Supplement and Article Five of the Trust Agreement and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Ownersthe Owner; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each the Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Owner Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement or any other 2012-A Basic Document.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment, change, modification, waiver of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of payments on the 2012-A Leases or 2012-A Vehicles);
(iii) the amendment, change, modification, or waiver of any 2012-A Basic Document;
(iv) 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, any Paying Agent or Indenture Trustee of its obligations under the Indenture;
(v) the appointment of a successor Owner Trustee pursuant to the Trust Agreement; and
(vi) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the 2012-A Basic Documents Documents, (ii) sell the Trust Estate pursuant to Section 5.04(a) of the Indenture or otherwise (iii) take any other action that the Issuer directs the Administrator not to take on its behalf.
(k) To the extent any notice must be delivered to the Rating Agencies by lawthe Issuer, the Owner Trustee, the Titling Trustee or the Indenture Trustee under the 2012-A Basic Documents, such notice will be delivered to the Administrator and the Administrator will deliver such notice to the Rating Agencies. If MBFS USA is no longer the Administrator, the Administrator shall provide any Rating Agency notices under this Section 1.02 to the Transferor, who shall provide such notices to the Rating Agencies within the required time periods.
Appears in 2 contracts
Samples: 2012 a Administration Agreement (Mercedes-Benz Auto Lease Trust 2012-A), Administration Agreement (Mercedes-Benz Auto Lease Trust 2012-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining and preservation of the documents and instruments required for authentication of the Notes and delivery of the same Issuer’s qualifications to the Indenture Trustee do business (Section 2.23.4);
(iv) the preparation, obtaining or filing preparation of the instruments, opinions, certificates all supplements and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver amendments to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xv) the delivery of the Opinion of Counsel on the 2015-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivi) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiivii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2015-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2015-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiviii) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(ix) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xi) the delivery of the 2015-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2015-1 Closing Date (Section 3.23);
(xii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b4.1);
(xiii) the maintenance of books and records of the Issuer (Section 3.24);
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvixv) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee (Section 6.7 and 6.10);
(xvi) 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 respect to the sale resignation or removal of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and be continuing (Section 5.46.9);
(xvii) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i));
(xix) the opening of one or more accounts in filing with the Trust’s nameIndenture Trustee and the Commission such additional information, the preparation of Issuing Entity Orders, Officer’s Certificates documents and Opinions of Counsel and all other actions necessary reports with respect to investment compliance by the Issuer with the conditions and reinvestment covenants of funds in the Trust Accounts Indenture as may be required from time to time by the rules and regulations prescribed from time to time by the Commission (Sections 8.2 and 8.3Section 7.3(a)(ii));
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release furnishing of the Trust Estate as defined in Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(iii));
(xxi) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiii) 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 9.1 and 9.39.2);
(xxiixxiv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxv) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvi) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to OwnersTrust Certificateholders and preparation and filing of tax returns; provided, however, that the Owner Trustee shall retain responsibility for the distribution (but not the preparation) of the Schedule K-1s documentation necessary to enable each Owner Trust Certificateholder to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2015-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2015-1), Administration Agreement (GM Financial Automobile Leasing Trust 2015-1)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Transaction Documents.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Transaction Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (all section references in this Section 1(a)(i) are to sections of the Indenture):
(iA) the preparation of Issuer Orders directing the authentication of Notes and the preparation of or obtaining of any other documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) 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 2.42.04);
(iiC) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b))) or indication on the Monthly Servicer’s Report that the Principal Amount is 0;
(iii) 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);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office or agency in New York, New York, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes, and the delivery of notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the a Paying Agents Agent to deposit monies with pay to the Indenture Trustee all sums held by such Paying Agent (Section 3.33.03);
(viiiH) the preparation of and delivery to the Indenture Trustee of an Issuer Request directing the Indenture Trustee to deposit in the Collection Account any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed after such amount has become due and payable (Section 3.03);
(I) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral, other than as prepared by the Servicer (Section 3.53.05);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.06(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale Pooling and Servicing Agreement and, if such Servicer Default arises from (Sections 3.06(d) and 3.12);
(M) the failure notification of the Servicer to perform Indenture Trustee of any termination of its duties the Servicer’s rights and powers under the Sale Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure Agreement (Section 3.7(d3.06(d));
(xiiiN) the notification of the Indenture Trustee and each Rating Agency of the appointment of a Successor Servicer under the Pooling and Servicing Agreement (to the extent such party has not already been notified pursuant to the Pooling and Servicing Agreement) (Section 3.06(d));
(O) the delivery of certain statements as to compliance with the Indenture (Sections 3.08(a)(F) and 3.08(b)(F));
(P) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b3.09(b));
(xivQ) the delivery notification of notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each an Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Indenture (Section 3.193.12);
(xvR) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiT) the furnishing preparation and delivery to Noteholders and the Indenture Trustee of a notice stating the record date, the payment date and the amount to be paid on such record date (Section 5.06(b));
(U) the preparation and delivery of notice to Noteholders and each Rating Agency of the appointment of a successor Indenture Trustee (Section 6.08);
(V) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(W) the notification of the Rating Agencies of any merger or consolidation involving the Indenture Trustee (Section 6.09);
(X) 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 7.17.01);
(xviiiY) the preparation, execution and filing with of reports required by the Commission and or under 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 the transmission of such summaries, as necessary, to the Noteholders TIA (Section 7.37.03);
(xixZ) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxAA) the preparation of an Issuing Entity Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent CertificatesCertificate, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 and 8.5Section 8.04(b));
(xxiBB) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiCC) the preparation, execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiDD) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivEE) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel Certificates and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxv) 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));
(xxviFF) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
and (xxviiGG) the recording of the Indenture, if applicable (Section 11.1511.14).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator agrees to:
(A) except as otherwise expressly provided in this Agreement the Indenture or the Related Agreements Pooling and Servicing Agreement, pay the Indenture Trustee’s fees and 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 Transaction Documents (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith, or willful misconduct;
(B) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence, bad faith, or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement and this Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement (the indemnities provided by this section shall include, without limitation, an indemnity as described above with respect to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee ’s obligations in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) favor 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.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of under Section 5.5 and Section 5.6(a) 8.02 of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the extent any such obligations to the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returnsremain unpaid).
(ivC) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 9.01(e) of the Trust Agreement required to be performed in connection with the resignation or removal winding up of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementIssuer.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Cit Equipment Collateral 2006-Vt2), Administration Agreement (CIT Equipment Collateral 2006-Vt1)
Duties of the Administrator. (a) Primary Duties with Respect to of the Indenture and the Depository Agreement. Administrator.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Owner Trustee under the Indenture and the Depository AgreementRelated Agreements. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Issuing Entity’s or Entity and the Trustee’s duties Owner Trustee under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02);
(B) the preparation of or obtaining of the documents and instruments required for execution and authentication of temporary Notes and delivery of the same to the Indenture Trustee (Section 2.03);
(C) 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 2.42.05);
(iiD) the duty to cause the replacement of lost or mutilated Notes upon the request of the Issuing Entity (Section 2.06);
(E) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.08(c));
(iii) 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);
(ivF) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.10);
(vG) [reserved]the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(viH) the maintenance of an office in the Borough of Manhattan, City of New York, for registration and transfer or exchange of Notes (Section 3.02);
(I) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiJ) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiK) the obtaining and preservation of the Issuing Entity’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, Notes and the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixL) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xM) the delivery of the an Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiO) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiP) the preparation Issuing Entity’s duty to use all reasonable efforts to cause the Servicer to comply with Sections 4.09, 4.10, 4.11, 5.07(b) and obtaining of documents and instruments required for the release Article IX of the Issuing Entity from its obligations under the Indenture Sale and Servicing Agreement (Section 3.10(b)3.14);
(xivQ) the delivery of written notice to the Indenture Trustee, Owner Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or Seller the Depositor under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvR) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.03);
(xviiT) the preparation of any written instruments required to give effect to the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee to the Noteholders and the Swap Counterparty, if any (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiV) the preparationpreparation and, after execution and by the Issuing Entity, the filing with the Commission 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 7.37.03);
(xixW) the opening of one or more accounts in the Trust’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxX) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 8.04 and 8.58.05);
(xxiY) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiZ) arranging for the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiAA) the notification of duty to notify Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivBB) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvCC) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviDD) the notification of the Rating Agencies, upon the failure of the Issuing Entity or the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiFF) the recording of the Indenture, if applicable (Section 11.15).;
(bii) Duties with Respect The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or co-trustee appointed pursuant to Section 6.10 of the Indenture (a “Separate Trustee”) from time to time reasonable compensation for all services rendered by the Indenture Trustee or Separate Trustee, as the case may be, under the Indenture (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition to except as otherwise expressly provided in the duties Indenture, reimburse the Indenture Trustee or any Separate Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or Separate Trustee, as the case may be, in accordance with any provision of the Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement any Separate Trustee and shall perform such calculationstheir respective agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any Expenses (as defined below) incurred without negligence, bad faith or the Trustee willful misconduct on their part, arising out of or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Basic Documents, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any of the foregoing and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement claim or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed liability in connection with the exercise or performance of any of their powers or duties under the Indenture. The benefits under this section shall survive the resignation or removal termination of the TrusteeIndenture Trustee or the termination of this Agreement; and
(D) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants as primary obligor from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable and documented costs, expenses and disbursements (including reasonable and documented legal fees and expenses and other duties expressly required amounts owed to be performed by the Administrator under Owner Trustee pursuant to the Trust Agreement.
) of any kind and nature whatsoever (vicollectively, “Expenses”) In carrying which may at any time be imposed on, incurred by, or asserted against the Owner Trustee in any way relating to or arising out of the foregoing duties Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee, except only that the Administrator shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, matters described in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated partiesthird sentence of Section 7.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (World Omni Auto Receivables LLC), Administration Agreement (World Omni Auto Receivables Trust 2009-A)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin St. Xxxx, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2023-2 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2023-2 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2023-2 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2023-2 Exchange Note to the Indenture Trustee in St. Xxxx, Minnesota on the 2023-2 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2023-2 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2023-2), Administration Agreement (GM Financial Automobile Leasing Trust 2023-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2018-3 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2018-3 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2018-3 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.10);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2018-3 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2018-3 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.4);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2018-3 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GMF Leasing LLC), Administration Agreement (GM Financial Automobile Leasing Trust 2018-3)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository Sale and Servicing Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing following as are required with respect to the following foregoing matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to an Event of Termination under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure and of the appointment of a Successor Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiN) the duty to cause the Servicer to comply with Article Five and Article Nine of the Sale and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the delivery of written notice to each Rating Agency of amendments to the Sale and Servicing Agreement (Section 3.21);
(R) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviS) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing and the delivery of written notice of such sale to the Rating Agencies (Section 5.45.04);
(xviiT) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(U) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(V) the delivery of notice to the Rating Agencies of a successor Indenture Trustee by merger, conversion or consolidation of the Indenture Trustee (Section 6.09);
(W) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixX) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxY) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiZ) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Rating Agencies and the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiAA) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiBB) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivCC) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvDD) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviEE) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiFF) the recording of the Indenture, if applicable (Section 11.1511.14).
; and (bGG) Duties with Respect to the Trust.
appointment of a successor Indenture Trustee (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.08). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, which provides for the payment of the Indenture Trustee Fee, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (Harley-Davidson Motorcycle Trust 2012-1), Administration Agreement (Harley-Davidson Motorcycle Trust 2012-1)
Duties of the Administrator. (a) Duties with Respect to the Indenture Related Agreements and the Depository Agreement. Transaction Documents.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing EntityIssuer’s or the Owner Trustee’s duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to such documentsthe Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(g));
(iiiC) 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 Sections 2.2, 2.3, 2.6 and 2.13);
(ivD) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vF) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xK) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiM) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiN) the notification preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiO) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the release consolidation or merger of the Issuing Entity from Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its obligations under the Indenture properties or assets (Section 3.10(b));
(xivR) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvS) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviU) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiV) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) 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 (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiAA) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixBB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxEE) the preparation and delivery of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxiFF) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiGG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiHH) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvII) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.1(e));
(xxviKK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) 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
(xxviiMM) the recording of the Indenture, if applicable (Section 11.15).
(bii) Duties with Respect The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the Trust.compensation of a trustee of an express trust);
(iB) In addition to except as otherwise expressly provided in the duties 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 Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Administrator shall perform the duties Indenture Trustee and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculationsits agents for, and shall prepare for execution by the Issuing Entity hold them harmless against, any loss, liability or the Trustee expense incurred without negligence or shall cause the preparation by other appropriate persons bad faith on their part arising out of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (acceptance or administration of the transactions contemplated by the Indenture, including the Related Agreements) as are not covered by reasonable costs and expenses of defending themselves against any of the foregoing and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement claim or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) The Administrator shall perform the duties of the Administrator specified in Section 10.2 of the Trust Agreement required to be performed liability in connection with the resignation exercise or removal performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the Trustee, and any other duties expressly required to be performed transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2016-2), Administration Agreement (CarMax Auto Owner Trust 2016-2)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Transaction Documents.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Transaction Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (all section references in this Section 1(a)(i) are to sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b))) or indicate on the Servicer Report that the Principal Amount is 0;
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office in New York, New York, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.93.09);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiS) the preparation, execution and filing with of reports required by the Commission and or under 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 the transmission of such summaries, as necessary, to the Noteholders TIA (Section 7.37.03);
(xixT) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxU) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiV) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiW) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiX) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivY) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvZ) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviAA) the notification of the Rating Agencies, of any merger or consolidation involving the Issuer, the Servicer, the Owner Trustee or the Indenture Trustee and upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiCC) the recording of the Indenture, if applicable (Section 11.1511.14).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator agrees to:
(A) except as otherwise expressly provided in this Agreement the Indenture or the Related Agreements to Pooling and Servicing Agreement, pay the contraryIndenture Trustee's fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, if any Certificates are held disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Transaction Documents (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement or assume the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) Issuer's obligations set forth in Sections 5.2(a), Section 6.07 of the Indenture; and
(bC) indemnify the Owner Trustee (including in its individual capacity) and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement and this Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement (c)the indemnities provided by this section shall include, without limitation, an indemnity as described above with respect to the first sentence Trust Depositor's obligations in favor of the Owner Trustee under Section 5.5 and Section 5.6(a) 8.02 of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the extent any such obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Owner Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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 requiredremain unpaid).
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 2 contracts
Samples: Administration Agreement (CIT Equipment Collateral 2004-Ef1), Administration Agreement (NCT Funding Co LLC)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the obligations and duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, as the case may be, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, including, without limitation, the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.2);
(ii) 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);
(iiiii) the fixing or causing to be fixed maintenance of any specified record date and the notification of an office at the Indenture Trustee and Noteholders with respect to special payment datesin Minneapolis, if any Minnesota for registration of transfer or exchange of Notes (Section 2.7(c));
(iii) 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 2.23.2);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing EntityIssuer’s qualification qualifications to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixv) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as are necessary or advisable to protect the Issuer Trust Estate (Section 3.5);
(xvi) the delivery of the Opinion of Counsel on the 2023-1 Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust EstateDate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections Section 3.6 and 3.9);
(xivii) the identification to the Indenture Trustee in an Officer’s Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiviii) the notification of the Indenture Trustee and the Rating Agencies of a each Servicer Default pursuant to under the Sale and 2023-1 Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and 2023-1 Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(ix) the delivery of the Officer’s Certificate as to compliance with the Program Documents (Section 3.9);
(x) the notification of the Indenture Trustee and the Issuer Owner Trustee of each Event of Default or Servicer Default (Section 3.20);
(xi) the notification of the Indenture Trustee and the Issuer Owner Trustee of each event described in Section 3.22 of the Indenture (Section 3.21);
(xii) the delivery of the 2023-1 Exchange Note to the Indenture Trustee in Minneapolis, Minnesota on the 2023-1 Closing Date (Section 3.23);
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.1);
(xiv) the delivery maintenance of notice to books and records of the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement Issuer (Section 3.193.24);
(xv) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive appointment of a successor Indenture Trustee or removal of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred (Sections 6.7 and be continuing (Section 5.46.10);
(xvii) the furnishing 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.7 and 6.9);
(xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiixix) the preparation, execution and filing with the Commission and the Indenture Trustee of copies of the annual reports and other information, documents and other reports the Issuer is required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, file with the Commission and pursuant to Section 13 or 15(d) of the transmission of such summaries, as necessary, Exchange Act within fifteen (15) days after the issuer is required to file the Noteholders same with the Commission (Section 7.37.3(a)(i);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity Request and Officer’s Certificate filing with the Indenture Trustee and the obtaining of an Opinion of Counsel Commission such additional information, documents and Independent Certificates, if necessary, for reports with respect to compliance by the release Issuer with the conditions and covenants of the Trust Estate Indenture as defined in may be required from time to time by the Indenture rules and regulations prescribed from time to time by the Commission (Sections 8.4 and 8.5Section 7.3(a)(ii));
(xxi) the furnishing of the Indenture Trustee with summaries of any information, documents and reports required to be filed by the Issuer pursuant to Sections 7.3(a)(i) and (ii) of the Indenture as may be required by the regulations prescribed from time to time by the Commission (Section 7.3(a)(iii));
(xxii) the notification of the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4(b));
(xxiii) the preparation of Issuing Entity an Issuer Request for the release of the Issuer Trust Estate (Section 8.4);
(xxiv) 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 9.1 and 9.39.2);
(xxiixxv) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivxxvi) the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));; and
(xxvxxvii) 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)).
(b) The Administrator shall:
(i) pay the Owner Trustee in its individual capacity from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust);
(xxviii) except as otherwise expressly provided in the preparation Trust Agreement, reimburse the Owner Trustee (as such or in its individual capacity) upon its request for all reasonable expenses, disbursements and delivery advances incurred or made by the Owner Trustee (as such or in its individual capacity) in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to Noteholders and its own gross negligence or willful misconduct;
(iii) to the extent not paid pursuant to Section 8.3(a) of the Indenture, pay the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee (including the fees and expenses of its counsel) under the Program Documents (which compensation shall not be limited by any agreements with respect provision of law in regard to alternate payment and notice provisions (Section 11.6the compensation for a trustee of an express trust); and
(xxviiiv) indemnify the recording Indenture Trustee in accordance with Section 6.6 of the Indenture, if applicable (Indenture and indemnify the Owner Trustee in accordance with Section 11.15)8.2 of the Trust Agreement.
(b) Duties with Respect to the Trust.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.02(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, including those required under or requested pursuant to the TIA, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.06, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Indenture Collateral (including the Related AgreementsDocuments) 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.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee Note Paying Agent in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.1(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee Note Paying Agent pursuant to such provision.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) or the Note Paying Agent, as applicable, set forth (i) in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a9.1(b) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date with respect to which final payment of the Trust Certificates shall be made, among other things, and (ii) Section 5.3(b) of the Trust Agreement with respect to accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution Trust Certificateholders and preparation and filing of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(ivf) If any Certificates are held by any Person other than the Depositor, the The Administrator shall satisfy its obligations with respect to clauses (iid) and (iiie) above by retaining, at the expense of the Trust Issuer, payable by the ServicerAdministrator, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trusteeaccountants, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vg) The Administrator shall perform the any duties of the Administrator specified in Section 10.2 of that are expressly required under the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAdministrator.
(vih) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viii) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the 2023-1 Exchange Note);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or Successor Servicers, or the consent to the assignment by lawthe Note Registrar or the Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(j) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, or (ii) take any other action that the Issuer directs the Administrator not to take on its behalf.
Appears in 2 contracts
Samples: Administration Agreement (GM Financial Automobile Leasing Trust 2023-1), Administration Agreement (GM Financial Automobile Leasing Trust 2023-1)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Transaction Documents.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Transaction Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Transaction Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b));
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the maintenance of an office in New York, New York, or the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.93.09);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale Pooling and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiS) the preparation, execution and filing with of reports required by the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.37.03);
(xixT) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxU) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiV) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiW) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiX) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivY) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvZ) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviAA) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiCC) the recording of the Indenture, if applicable (Section 11.1511.14).
(bii) Duties with Respect to the Trust.The Administrator will:
(iA) In addition to except as otherwise expressly provided in the duties Indenture or the Pooling and Servicing Agreement, pay the Indenture Trustee's fees and 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 Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Administrator shall perform Indenture Trustee and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the duties and obligations acceptance or administration of the Issuing Entity transactions contemplated by the Indenture and this Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Asset Representations Review Indenture; and
(C) indemnify the Owner Trustee and its officers, directors, employees or agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement and shall perform such calculationsthis Agreement, including the reasonable costs and shall prepare for execution by expenses of defending themselves against any claim or liability in connection with the Issuing Entity exercise or performance of any of their powers or duties under the Trustee or shall cause the preparation by other appropriate persons of all such documentsTrust Agreement (and including without limitation, reports, filings, instruments, certificates and opinions, an indemnity as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than described above with respect to Sections 11.14, 11.15 and 11.16 the Trust Depositor's obligations in favor of the Owner Trustee under Section 8.02 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Newcourt Receivables Corp Ii)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s Issuer's or the Owner Trustee’s 's duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee Trustee, the Depositor, the Swap Counterparty and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Noteholders, the Swap Counterparty and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders and the Swap Counterparty of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions 's Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s 's Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) 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;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (CarMax Auto Owner Trust 2007-3)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Issuing Entity.
(i) The Administrator shall agrees to perform all of its duties as Administrator Administrator, and the duties of the Issuing Entity and the Owner Trustee under as specified herein pursuant to a power of attorney substantially in the Indenture and the Depository Agreementform of Exhibit A hereto. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and the Owner Trustee under such documents. The Administrator shall monitor the performance of or the Issuing Entity under the Indenture and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documentsSale and Servicing Agreement. The Administrator shall prepare for execution by the Owner Trustee on behalf of the Issuing Entity Entity, or shall cause the preparation by other appropriate persons of or entities of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity or the and Owner Trustee to prepare, file or deliver pursuant to the Sale and Servicing Agreement or the Indenture. In addition, the Administrator shall take or cause the Issuing Entity to take all action that is the duty of the Issuing Entity to take Administration Agreement pursuant to the Sale and Servicing Agreement, the Indenture and the related agreements and the Basic Documents to which the Issuing Entity is a party, except (i) any such documentsduties that constitute Non-Ministerial Matters (as described in Section 2(c) below), (ii) duties that are expressly identified to be performed by the Owner Trustee or another Person on behalf of the Issuing Entity, (iii) duties constituting payment obligations of the Issuing Entity, including, without limitation, duties under Article V of the Sale and Servicing Agreement (it being understood and agreed that the Administrator in its individual capacity shall not be responsible for any payment obligations of the Issuing Entity), and (iv) duties under Sections 3.01 of the Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Owner Trustee to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (parenthetical section references in this Section are to sections of the IndentureIndenture unless otherwise specified):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c8.02(c));
(iiiC) 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 2.2Sections 2.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.94.04);
(vE) [reserved]the maintenance of an office in the Borough of Manhattan, City of New York, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies moneys with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification Administration Agreement is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust EstateCollateral, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiK) the identification delivery of written notice to the Indenture Trustee in an Officer’s Certificate of a the identity of each Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to Replacement Event under the Sale and Servicing Agreement and, if such Servicer Default Replacement Event arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing AgreementAgreement with respect to the Conveyed Assets, the taking of all reasonable steps available to remedy such failure (Section 3.7(dSections 3.07(c) and (d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xivM) the delivery of notice to the Indenture Trustee and the Noteholders of the termination of the Servicer’s rights and powers pursuant to the Sale and Servicing Agreement and, as soon as a successor servicer is appointed, the delivery of written notice to the Indenture Trustee and the Noteholders of such appointment (Section 3.07(e));
(N) the duty to cause the Servicer to comply with the Sale and Servicing Agreement (Section 3.13);
(O) the delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Servicer or a Loan Seller under the Sale and Servicing Agreement and (c) each default by CNHICA the Depositor, or Huntington under the Asset Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the an Opinion of Counsel and the an Independent Certificate relating thereto (Section 4.14.01);
(xviQ) the compliance with any written directive of the Indenture Trustee (with the consent of the applicable requisite Noteholders as set Administration Agreement forth in Section 5.04 of the Indenture) with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04(a));
(xviiR) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(S) 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 6.08 and 6.10);
(T) the furnishing to the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixU) the opening of one or more accounts in the TrustIssuing Entity’s name, the preparation and delivery of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 Section 8.02 of the Indenture and 8.3Section 5.01 of the Sale and Servicing Agreement);
(xxV) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiW) the preparation of Issuing Entity Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiX) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.05);
(xxiiiY) the notification of to Noteholders of redemption of the Notes or the duty to cause causing of the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivZ) without duplication the preparation and delivery of all Officer’s Certificates, Certificates and Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));; Administration Agreement
(xxvAA) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture to the extent permitted thereunder (Section 11.01(b));
(BB) the notification of the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.1(b)11.04);
(xxviCC) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiDD) the recording of the Indenture, if applicable (Section 11.1511.14).;
(bEE) Duties with Respect the giving of direction to Paying Agents to pay to the Trust.Indenture Trustee all sums held in trust by such Paying Agents (Section 3.03); and
(iFF) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of to provide the Issuing Entity or the Indenture Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related Agreements) information necessary to deliver to each Noteholder such information as are not covered by any of the foregoing and as are expressly requested by the Trustee and are may be reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to enable such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner Holder to prepare its United States federal and state and local income or franchise tax returnsreturns (Sections 6.06 and 7.05(b)).
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Huntington Auto Trust 2012-2)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s Issuer's or the Owner Trustee’s 's duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default or by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the Trust’s Issuer's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions 's Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s 's Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).; and
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.
(i) In addition to the duties instructions of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Clearing Agency (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 2.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Duties of the Administrator. Subject to the direction and control of the Board of Trustees of the Trust, the Administrator shall perform such administrative and management services as may from time to time be reasonably requested by the Trust, which shall include without limitation: (a) Duties providing office space, equipment and clerical personnel necessary for maintaining the organization of the Trust and for performing the administrative and management functions herein set forth; (b) arranging, if desired by the Trust, for Directors, officers and employees of the Administrator to serve as Trustees, officers or agents of the Trust if duly elected or appointed to such positions and subject to their individual consent and to any limitations imposed by law; (c) supervising the overall administration of the Trust, including negotiation of contracts and fees with Respect and the monitoring of performance and xxxxxxxx of the Trust's transfer agent, shareholder servicing agents, custodian and other independent contractors or agents; (d) preparing and, if applicable, filing all documents required for compliance by the Trust with applicable laws and regulations, including registration statements, semi-annual and annual reports to the Indenture Trust's investors, proxy statements and tax returns; (e) preparation of agendas and supporting documents for and minutes of meetings of Trustees, committees of Trustees and the Depository AgreementTrust's investors; and (f) arranging for maintenance of books and records of the Trust. The Administrator shall perform such specified activities and shall conduct all of its duties activities as Administrator and the duties administrator of the Issuing Entity Trust, including any activities described in this Agreement, as set forth in the Operating Policies and Procedures (the Trustee under "Operating Procedures") of the Indenture and Trust (in such form as may be approved from time to time by the Depository AgreementTrust's Board of Trustees). In additionTo the extent that any provision of this Agreement shall conflict with any provision of the Operating Procedures, the Administrator shall consult with the Trustee regarding the duties applicable provision of the Issuing Entity and the Trustee under such documents. The Administrator shall monitor the performance of the Issuing Entity and shall advise the Trustee when action is necessary to comply with the Issuing Entity’s or the Trustee’s duties under such documents. The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it Operating Procedures shall be the duty of the Issuing Entity or the Trustee deemed to prepare, file or deliver pursuant to such documentsgovern. In furtherance of Notwithstanding the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee not be deemed to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of have assumed any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.4);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) 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);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, necessary to protect the Trust Estate (Section 3.5);
(x) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, as to compliance with the Indenture (Sections 3.6 and 3.9);
(xi) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity has contracted to perform its duties under the Indenture (Section 3.7(b));
(xii) the notification of the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuing Entity’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xvi) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.4);
(xvii) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xix) the opening of one or more accounts in the Trust’s name, the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5);
(xxi) the preparation of Issuing Entity 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);
(xxii) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiii) the notification of Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxiv) the preparation of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxv) 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));
(xxvi) 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
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other thingsand shall not be responsible for, accounting the management of the Trust's assets or the rendering of investment advice and reports to Owners; provided, however, that the Trustee shall retain responsibility for supervision with respect thereto or the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositorshares, nor shall the Administrator shall satisfy its obligations be deemed to have assumed or have any responsibility with respect to clauses (ii) and (iii) functions specifically assumed by retainingany transfer agent, at the expense custodian or shareholder servicing agent of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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 requiredTrust.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administrative Services Agreement (Cash Reserves Portfolio)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. Related Agreements.
(i) The Administrator shall perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s Issuer's or the Owner Trustee’s 's duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is obligated to take pursuant to such documentsthe Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) 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 2.42.5);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) 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, 2.3, 2.6 and 2.13);
(ivD) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]the maintenance of an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and or agreement included in the Trust Estate (Section 3.4);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments required for the release conveyance or transfer by the Issuer of the Issuing Entity from its obligations under the Indenture properties or assets (Section 3.10(b));
(xivO) the preparation and delivery of written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Depositor or the Servicer or Seller under the Sale and Servicing Agreement and (c) each default or by CNHICA the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.193.18);
(xvP) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xviQ) 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(xviiR) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(S) 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 (Section 6.10);
(T) the furnishing to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiU) the preparationpreparation and, after execution and by the Issuer, filing with the Commission 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 the rules and regulations prescribed byof, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the Trust’s Issuer's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(xxW) the preparation and delivery of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiX) the preparation and delivery of Issuing Entity Issuer Orders and the obtaining of Opinions an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.2);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions 's Certificates and the obtaining of an Opinion of Counsel and Independent Certificates Certificates, if necessary, with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvBB) the preparation and delivery of Officer’s 's Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviCC) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(DD) the preparation and delivery to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.15).;
(bFF) Duties the preparation of Definitive Notes in accordance with Respect to the Trust.instructions of the Clearing Agency (Section 2.13); and
(iGG) In addition to the duties maintenance of the Administrator set forth above, the Administrator shall perform the duties and obligations effectiveness of the Issuing Entity sales finance company licenses required under the Asset Representations Review Agreement Maryland Code and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements Pennsylvania Motor Vehicle Sales Finance Company Act (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust AgreementSection 6.13). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything The Administrator (but not the Indenture Trustee if it is then acting as successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in this Agreement or a separate fee schedule between the Related Agreements Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the contrarycompensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, if any Certificates are held reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiC) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contrary, the Administrator shall be responsible for performance expense incurred without negligence or bad faith on their part arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 5 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository Agreement. The Administrator shall agrees to perform all of its duties as Administrator and the duties (other than payment obligations) of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementRelated Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Documents. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties (other than payment obligations) of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Related Documents. The Administrator shall prepare for execution by the Issuing Entity Issuer, or shall cause the preparation by other appropriate persons of of, all such documents, reports, notices, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Documents. In furtherance of the foregoing, the Administrator shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(i) 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 2.42.04);
(ii) the fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c));
(iii) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(iii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes (Section 3.02);
(iv) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of the Collateral (Section 2.9);
(v) [reserved];
(vi) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(v) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(vi) the obtaining and preservation of the Issuer’s qualifications to do business pursuant to Section 3.04 of the Indenture (Section 3.04);
(vii) the direction to the Paying Agents to deposit monies with the Indenture Trustee (Section 3.3);
(viii) the obtaining and preservation of the Issuing Entity’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ix) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other actions as are necessary or advisable to protect the Trust Estate (Section 3.53.05);
(xviii) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiix) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiix) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to under the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing AgreementAgreement with respect to the [____]-[_] SUBI Assets, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiixi) the delivery of written notice to the Indenture Trustee and each Rating Agency of each Indenture Default and each Servicer Default (Section 3.11);
(xii) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b)4.01);
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvxiii) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xvixiv) the compliance with any written directive Section 5.02 of the Indenture Trustee with respect to the sale of the Trust Estate in a commercially reasonable manner if an Event of Indenture Default shall have occurred and be continuing (Sections 5.02 and 5.04);
(xv) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 5.46.08);
(xvi) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(xvii) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1)7.01) and the Notes are not held through the Depository Trust Company;
(xviii) the preparation, execution preparation and filing with the Commission and the Indenture Trustee of any documents required to be filed on a periodic basis with, and summaries thereof as may be required by rules and regulations prescribed by, pursuant to Section 7.03 of the Commission and the transmission of such summaries, as necessary, to the Noteholders Indenture (Section 7.37.03);
(xix) the opening of one or more accounts in the Trust’s name, Note Distribution Account and the preparation taking of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Trust Accounts therein (Sections 8.2 8.02 and 8.38.05);
(xx) the preparation of an Issuing Entity 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 as defined in the Indenture (Sections 8.4 and 8.5Section 8.06);
(xxi) the preparation of Issuing Entity Orders Issuer Requests and the obtaining of Opinions of Counsel Counsel, if required with respect to the execution of supplemental indentures and the mailing to the Noteholders of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxii) the execution execution, authentication and delivery of new Notes conforming to any supplemental indenture indenture, if required (Section 9.69.05);
(xxiii) the notification of duty to notify Noteholders and each Rating Agency of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxiv) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxv) 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(b11.01(b));
(xxvi) the preparation and delivery to Noteholders and notification of each Rating Agency, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to give such notification, of any agreements with respect the information required pursuant to alternate payment and notice provisions Section 11.04 of the Indenture (Section 11.611.04); and
(xxvii) the recording preparation of Definitive Notes in accordance with the instructions of the Indenture, if applicable Clearing Agency (Section 11.152.11).
(b) Duties with Respect The Administrator shall:
(i) 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 Trustcompensation of a trustee of an express trust);
(ii) 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 its agents and counsel) other than overhead, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(iii) pay any indemnity owing by the Issuer to the Indenture Trustee under the Indenture;
(iv) pay any indemnity owing by the Transferor to the Owner Trustee under the Trust Agreement;
(v) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust); and
(vi) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel) other than overhead, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith.
(ic) In addition to the duties of the Administrator set forth abovein Sections 1.2(a) and (b), the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, calculations and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons Persons of, and shall execute on behalf of the Issuer or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions, as it shall be opinions that the duty of the Issuing Entity Issuer or the Owner Trustee are required to perform, prepare, file or deliver pursuant to the Related AgreementsDocuments, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuing Entity Issuer or the Owner Trustee are required to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement)Documents. Subject to Section 5 1.6, and in accordance with the directions of this Agreementthe Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related AgreementsDocuments) as are not covered by any of the foregoing provisions and as are expressly requested by the Trustee and Owner Trustee, are reasonably within the capability of the AdministratorAdministrator and necessary to effect the transactions contemplated by the Related Documents.
(iid) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the TrustIssuer’s payments (or allocations of income) to an Owner a Trust Certificateholder as contemplated in Section 5.2(c5.02(d) 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.
(iiie) Notwithstanding anything in this Agreement or the Related Agreements Documents to the contrary, the Administrator shall be responsible for performance of the duties of the Owner Trustee (if any) set forth in Sections 5.2(a), (b) 5.03 and (c), the first sentence of Section 5.5 and Section 5.6(a9.02(c) of the Trust Agreement with respect toto notifying the Trust Certificateholders of the Payment Date on which their Trust Certificates will be repaid or redeemed, among other thingsas the case may be, and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to OwnersTrust Certificateholders; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the Schedule K-1s documentation necessary to enable each Owner Trust Certificateholder to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(vf) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust AgreementAgreement and the Indenture.
(vig) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliatesAffiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity Issuer and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity Issuer than would be available from unaffiliated parties.
(viih) The Administrator hereby agrees With respect to execute on behalf matters that in the reasonable judgment of the Issuing Entity all Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such documentsaction, reports, filings, instruments, certificates and opinions as it the Administrator shall be have notified the duty Owner Trustee of the Issuing Entity 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:
(i) amendment of or any supplement to preparethe Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, file claim or deliver lawsuit brought by or against the Issuer (other than in connection with the collection of the Leases);
(iii) the amendment, change or modification of the Related Documents;
(iv) the appointment of successor Note Registrars, successor Paying Agents and successor Indenture Trustees pursuant to the Basic Documents Indenture or otherwise the appointment of successor Administrators or successor Servicers, or the consent to the assignment by lawthe Note Registrar, any Paying Agent or Indenture Trustee of its obligations under the Indenture; and
(v) the removal of the Indenture Trustee.
(i) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, (ii) sell the Trust Estate pursuant to Section 5.02 of the Indenture, (iii) take any other action that the Issuer directs the Administrator not to take on its behalf or (iv) take any other action which may be construed as having the effect of varying the investment of the Trust Certificateholders.
Appears in 1 contract
Samples: Issuer Administration Agreement (BMW Auto Leasing LLC)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reserved]the maintenance of an office in the City of Chicago, Illinois, for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement, ;
(N) the taking duty to cause the Servicer to comply with Article Five and Article Nine of all reasonable steps available to remedy such failure the Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee's fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Harley Davidson Customer Funding Corp)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository AgreementIndenture. ------------------------------------
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementBasic Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the fixing or causing to be fixed of any specified record date and the notification of Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.07(b));
(iiiC) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivD) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vE) [reserved]the appointment of the Indenture Trustee as its agent therefor, for registration of transfer or exchange of Notes (Section 3.02);
(viF) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiG) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiH) the obtaining and preservation of the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixI) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xJ) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.93.09);
(xiK) the identification to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiL) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties Termination Event under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xiv) the delivery of notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) each default by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvN) the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviO) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiP) the preparation and delivery of notice to Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(Q) 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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(R) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixS) the opening of one or more accounts in the Trust’s Indenture Trustee's name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxT) the preparation of an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiU) the preparation of Issuing Entity 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 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiV) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiW) the notification of duty to notify Noteholders of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivX) the preparation and delivery of all Officer’s 's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvY) the preparation and delivery of Officer’s 's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviZ) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(AA) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and
(xxviiBB) the recording of the Indenture, if applicable (Section 11.1511.14).
(bii) Duties with Respect to the Trust.The Administrator will:
(iA) In addition to except as otherwise expressly provided in the duties Indenture or the Sale and Servicing Agreement, pay the Indenture Trustee's fees and 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 Administrator set forth aboveIndenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(B) indemnify the Administrator shall perform Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the duties and obligations acceptance or administration of the Issuing Entity transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Asset Representations Review Agreement Indenture; and
(C) indemnify the Owner Trustee and shall perform such calculationsits agents for, and shall prepare for execution hold them harmless against, any loss, liability or expense incurred without or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Issuing Entity Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the Trustee exercise or shall cause performance of any of their powers or duties under the preparation by other appropriate persons of all such documentsTrust Agreement (and including without limitation, reports, filings, instruments, certificates and opinions, an indemnity as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than described above with respect to Sections 11.14, 11.15 and 11.16 the Trust Depositor's obligations in favor of the Owner Trustee under Section 8.02 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Mitsui Vendor Leasing 1998-1 LLC)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture Note Depository Agreement and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee Issuer under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity Issuer under the Indenture and the Trustee under such documentsNote Depository Agreement. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action by the Issuer or the Owner Trustee is necessary to comply with the Issuing Entity’s or the TrusteeIssuer’s duties under such documentsthe Indenture and the Note Depository Agreement. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee Issuer to prepare, file or deliver pursuant to such documentsthe Indenture and the Depository Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee Issuer to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the duty to cause causing the Note Register to be kept and to give giving the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.42.04);
(iiB) preparing the notification to Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) fixing or causing to be fixed of any specified record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c5.04(d));
(iiiD) the preparation of preparing or obtaining of the documents and instruments required for the proper authentication of the Notes and delivery of delivering the same to the Indenture Trustee (Section 2.22.02);
(ivE) approving the preparationform and substance of an Opinion of Counsel or a representation letter of the transferee in connection with the transfer of the Class A-1 Notes (Section 2.04(b));
(F) directing the Indenture Trustee to retain from amounts otherwise distributable to the Noteholders sufficient funds for the payment of any tax that is legally owed by the Trust (Section 2.07(c));
(G) preparing, obtaining or and/or filing of the all instruments, opinions, opinions and certificates and other documents required for the release of the Collateral collateral (Section 2.9)2.09) ;
(vH) [reserved];
(vi) the duty to cause causing newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiI) directing the direction to the Paying Agents Indenture Trustee to deposit monies moneys with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiJ) the obtaining and preservation of preserving the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.43.04);
(ixK) the preparation of preparing and filing all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 3.05 of the Indenture, necessary to protect the Trust Estate (Section 3.53.05);
(xL) delivering the delivery of the Opinion required Opinions of Counsel on the Closing Date and the annual delivery of Opinions of Counselannually, in accordance with Section 3.6 3.06 of the Indenture, as to the Trust Estate, and delivering the annual delivery of the Officer’s Certificate Officers’ Certificates and certain other statementsstatements as to compliance with the Indenture, in accordance with Section 3.9 3.09 of the Indenture, as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiM) the identification identifying to the Indenture Trustee in an Officer’s Officers’ Certificate of a any Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiN) the notification of notifying the Indenture Trustee and the Rating Agencies of a any Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, the taking of all reasonable steps available to remedy such failure (Section 3.7(d3.07(d));
(xiiiO) the preparation preparing and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b));
(xivP) the delivery of delivering notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) and each other default by the Servicer or the Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.19);
(xvQ) monitoring the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating (as defined in the Indenture) related thereto (Section 4.14.01);
(xviR) the compliance complying with any written directive of the Indenture Trustee with respect to the provision of relevant information and reasonable assistance with respect to the execution, delivery, filing and recordation of relevant transfer documentation and the delivery of related records and files, in connection with any sale by the Indenture Trustee of any portion of the Trust Estate in a commercially reasonable manner if an connection with any Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) preparing notice to Noteholders of any removal of the furnishing Indenture Trustee and the appointment of a successor Indenture Trustee for delivery to Noteholders by the successor Indenture Trustee (Section 6.08);
(T) preparing all written instruments required to confirm 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 6.08 and 6.10);
(U) providing to the Rating Agencies copies of any amendment or supplement to the Interest Rate Swap Agreement (Section 6.14(c));
(V) notifying the Swap Counterparty of any proposed amendment or supplement to any of the Basic Documents (Section 6.14(d));
(W) causing the Note Registrar to furnish to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviiiX) preparing and, after execution by the preparationIssuer and the Indenture Trustee, execution and filing with the Commission and the Indenture Trustee any applicable state agencies of documents required to be filed on a periodic basis with, with the Commission and any applicable state agencies (including any summaries thereof as may be required by rules and regulations prescribed bythereby), and providing such documents to the Commission and the transmission of such summaries, as necessary, Indenture Trustee for delivery to the Noteholders (Section 7.37.03);
(xixY) preparing and, after execution by the opening of one or more accounts Indenture Trustee, providing to the Indenture Trustee for delivery to Noteholders and filing with the Commission, any reports required by TIA Sections 313(a), (b) and (c); provided, that the Administrator will not be required to prepare reports required by TIA Sections 313(a)(1) and (a)(2) unless specifically directed in writing to do so by the Trust’s name, Indenture Trustee and the preparation of Issuing Entity Orders, Officer’s Certificates and Opinions of Counsel Indenture Trustee provides the Administrator with all information necessary to prepare such reports (Section 7.04);
(Z) preparing the related Issuer Orders and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3Section 8.04);
(xxAA) the preparation of an Issuing Entity preparing any Issuer Request and Officer’s Certificate Officers’ Certificates and the obtaining of an Opinion any Opinions of Counsel and Independent Certificates, if necessary, Certificates necessary for the release of the Trust Estate as defined in the Indenture (Sections 8.4 8.05 and 8.58.06);
(xxiBB) the preparation of Issuing Entity preparing Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of any supplemental indentures and the mailing indentures, preparing notices to the Noteholders of notices with respect thereto and furnishing such notices to such supplemental indentures the Indenture Trustee for delivery to Noteholders (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiCC) the execution and delivery of preparing new Notes conforming to the provisions of any supplemental indenture indenture, as appropriate and delivering such Notes to the Owner Trustee for execution and to the Indenture Trustee for authentication (Section 9.69.07);
(xxiiiDD) the notification preparing forms of notices to Noteholders of any redemption of the Notes or the duty and furnishing such notices to cause the Indenture Trustee for delivery to provide such notification Noteholders (Section 10.210.02);
(xxivEE) the preparation of preparing or obtaining all Officer’s Officers’ Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity to Issuer or the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvFF) the preparation preparing and delivery of Officer’s delivering Officers’ Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
; (xxviGG) notifying the preparation and delivery to Noteholders and Rating Agencies, upon any failure of the Indenture Trustee to give such notification, of any agreements with respect the information required pursuant to alternate payment and notice provisions Section 11.04 of the Indenture (Section 11.611.04); and
(xxvii) the recording of the Indenture, if applicable (Section 11.15).
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.;
Appears in 1 contract
Samples: Administration Agreement (Toyota Auto Finance Receivables LLC)
Duties of the Administrator. (a) Duties with Respect respect to the Indenture and the Depository Agreement. Indenture.
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity Issuer and the Owner Trustee under the Indenture and the Depository AgreementTransaction Documents. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Indenture. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s or respective duties of the Trustee’s duties Issuer and the Owner Trustee under such documentsthe Indenture. The Administrator shall prepare for execution by the Issuing Entity Issuer or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee is required to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections Sections of the Indenture):
(iA) 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 2.42.04);
(iiB) the notification of Noteholders of the final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified special record date and the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 2.7(c2.07(c));
(iiiD) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.22.02);
(ivE) the preparation, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral (Section 2.92.12);
(vF) [reservedthe maintenance of an office in the City of [ ], for registration of transfer or exchange of Notes (Section 3.02);
(viG) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.33.03);
(viiH) the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.33.03);
(viiiI) the obtaining and preservation of the Issuing EntityIssuer’s qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate Collateral (Section 3.43.04);
(ixJ) the preparation of all supplements, amendments, supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 instruments and the taking of the Indenture, such other action as is necessary or advisable to protect the Trust Estate Collateral other than as prepared by the Servicer (Section 3.53.05);
(xK) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the Indenture, as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 3.06 and 3.93.09);
(xiL) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b3.07(b));
(xiiM) the notification of the Indenture Trustee and the each Rating Agencies Agency of a Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure an Event of the Servicer to perform any of its duties Termination under the Sale and Servicing Agreement, ;
(N) the taking duty to cause the Servicer to comply with Article Five and Article Nine of all reasonable steps available to remedy such failure the Sale and Servicing Agreement (Section 3.7(d)3.14);
(xiiiO) the preparation and obtaining of documents and instruments required for the release of the Issuing Entity Issuer from its obligations under the Indenture (Section 3.10(b) and Section 3.11(b));
(xivP) the delivery of written notice to the Indenture Trustee and the each Rating Agencies Agency of (a) each Event of Default under the Indenture, (b) Indenture and each default Event of Termination by the Servicer or Seller under the Sale and Servicing Agreement and (c) each default by CNHICA under the Purchase Agreement (Section 3.193.18);
(xvQ) the monitoring of the Issuing EntityIssuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.14.01);
(xviR) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate Collateral in a commercially reasonable manner if an Event of Default shall have occurred and be continuing (Section 5.45.04);
(xviiS) the preparation and delivery of notice to Noteholders and the Swap Counterparty of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08);
(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 the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing to of the Indenture Trustee of with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.17.01);
(xviii) the preparation, execution and filing with the Commission 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 the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(xixV) the opening of one or more accounts in the TrustIndenture Trustee’s name, the preparation and delivery of Issuing Entity Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 8.02 and 8.38.03);
(xxW) the preparation of an Issuing Entity 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 as defined in the Indenture Collateral (Sections 8.4 8.04 and 8.58.05);
(xxiX) the preparation of Issuing Entity Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Swap Counterparty of notices with respect to such supplemental indentures (Sections 9.19.01, 9.2 9.02 and 9.39.03);
(xxiiY) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.69.06);
(xxiiiZ) the notification of duty to notify Noteholders and the Swap Counterparty of redemption of the Notes or the duty to cause the Indenture Trustee to provide such notification (Section 10.210.02);
(xxivAA) the preparation and delivery of all Officer’s Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a11.01(a));
(xxvBB) the preparation and delivery of Officer’s Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien lien of the Indenture (Section 11.1(b11.01(b));
(xxviCC) the notification of the Rating Agencies, upon the failure of the Issuer, the Owner Trustee or the Indenture Trustee to provide notification;
(DD) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.611.06); and;
(xxviiEE) the recording of the Indenture, if applicable (Section 11.1511.14).; and
(bFF) Duties with Respect to the Trust.
(i) In addition to the duties appointment of the Administrator set forth above, the Administrator shall perform the duties and obligations of the Issuing Entity under the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity or the Trustee to perform, prepare, file or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity or the Trustee to take pursuant to the Related Agreements (other than with respect to Sections 11.14, 11.15 and 11.16 of the Trust Agreement). Subject to Section 5 of this Agreement, 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 and as are expressly requested by the Trustee and are reasonably within the capability of the Administratora successor Indenture Trustee.
(ii) Notwithstanding anything The Administrator will:
(A) except as otherwise expressly provided in this Agreement the Indenture, pay the Indenture Trustee’s fees and reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Indenture Trustee in the event that accordance with any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) provision of the Trust Agreement. Any Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such notice shall specify the amount of any withholding tax required expense, disbursement or advance as may be attributable to be withheld by the Trustee pursuant to such provision.its negligence or bad faith;
(iiiB) Notwithstanding anything in this Agreement indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or the Related Agreements to the contraryexpense incurred without negligence or bad faith on their part, the Administrator shall be responsible for performance arising out of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 acceptance or removal administration of the Trusteetransactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them harmless against, any other duties expressly required to be performed loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Administrator Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Harley Davidson Customer Funding Corp)
Duties of the Administrator. (a) Duties with Respect to the Indenture and the Depository AgreementRelated Agreements. -----------------------------------------------
(i) The Administrator shall agrees to perform all of its duties as Administrator and the duties of the Issuing Entity and the Trustee under the Indenture and the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuing Entity and Issuer or the Owner Trustee under such documentsthe Related Agreements. The Administrator shall monitor the performance of the Issuing Entity Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuing Entity’s Issuer's or the Owner Trustee’s 's duties under such documentsthe Related Agreements. The Administrator shall prepare for execution by the Issuing Entity Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of of, all such documents, reports, filings, instruments, certificates and opinions as that it shall be the duty of the Issuing Entity Issuer or the Owner Trustee to prepare, file or deliver pursuant to such documentsthe Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity Issuer or the Owner Trustee to take pursuant to such documents, the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references in this Section are to sections of the Indenture):
(iA) the duty to cause causing the Note Register to be kept and to give notifying the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.42.5);
(iiB) notifying the fixing or causing to be fixed of any specified record date and the notification Noteholders of the Indenture Trustee and Noteholders with respect to special final principal payment dates, if any on their Notes (Section 2.7(c2.8(e));
(iiiC) the preparation of preparing or obtaining of the documents and instruments required for authentication of the Notes and delivery of delivering the same to the Indenture Trustee (Section 2.2);
(ivD) the preparationpreparing, obtaining or filing of the instruments, opinions, opinions and certificates and other documents required for the release of the Collateral collateral (Section 2.92.10);
(vE) [reserved]maintaining an office in the Borough of Manhattan, City of New York, for registration of transfer or exchange of the Notes (Section 3.2);
(viF) the duty to cause causing newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(viiG) directing the direction to the Paying Agents Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(viiiH) the obtaining and preservation of preserving the Issuing Entity’s Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.4);
(ixI) preparing all supplements and amendments to the preparation of Indenture and all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.5 of the Indenture, instruments and taking such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(xJ) the delivery of delivering the Opinion of Counsel on the Closing Date and the annual delivery of annually delivering Opinions of Counsel, in accordance with Section 3.6 of the Indenture, Counsel as to the Trust Estate, and the annual delivery of annually delivering the Officer’s 's Certificate and certain other statements, in accordance with Section 3.9 of the Indenture, statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiK) the identification identifying to the Indenture Trustee in an Officer’s 's Certificate of a Person with whom the Issuing Entity Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(xiiL) the notification of notifying the Indenture Trustee and the Rating Agencies of a Servicer Default pursuant to an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Servicer Default Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing AgreementAgreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(xiiiM) causing the preparation Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, and 4.9 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(N) preparing and obtaining of documents and instruments required for the release conveyance or transfer of any of the Issuing Entity from its obligations under the Indenture Issuer's properties or assets (Section 3.10(b));
(xivO) the delivery of delivering written notice to the Indenture Trustee and the Rating Agencies of (a) each Event of Default under the Indenture, (b) Indenture and each default by the Issuer, the Servicer or the Seller under the Sale and Servicing Agreement and (c) each default Agreement, by CNHICA the Seller or Mitsubishi Motors Credit of America, Inc. under the Purchase Agreement Agreement, or by any Swap Counterparty under the Interest Rate Swap Agreements (Section 3.19);
(xvP) monitoring the monitoring of the Issuing Entity’s Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of preparing an Officer’s 's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1);
(xviQ) delivering to the compliance Noteholders and the Note Owners any Officer's Certificate received from the Issuer regarding the default in the observance or performance of any material covenant or agreement of the Issuer made in the Indenture or the breach of any representation or warranty of the Issuer made in the Indenture or in any certificate or other writing delivered pursuant to the Indenture (Sections 5.1 and 7.4(b));
(R) complying with any written directive direction 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 a commercially reasonable any manner permitted by law if an Event of Default shall have occurred and be continuing (Section 5.4);
(xviiS) preparing and delivering notice to the furnishing to Noteholders of the removal of the Indenture Trustee and appointing a successor Indenture Trustee (Section 6.8);
(T) preparing 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 (Section 6.10);
(U) furnishing the Indenture Trustee with the names and addresses of the Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(xviiiV) preparing and, after execution by the preparationIssuer, execution and filing with the Securities and Exchange Commission (the "Commission"), any applicable state agencies and the Indenture Trustee of Trustee, 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 the transmission of any applicable state agencies and transmitting such summaries, as necessary, to the Noteholders (Section 7.3);
(xixW) delivering to the Noteholders of Officer's Certificates and reports, if any, delivered to the Indenture Trustee pursuant to Section 3.10 and 3.11 of the Sale and Servicing Agreement (Section 7.4);
(X) opening of one or more accounts in the Trust’s Issuer's name, the preparation of Issuing Entity preparing and delivering Issuer Orders, Officer’s 's Certificates and Opinions of Counsel and all other actions necessary with respect to investment and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3);
(xxY) the preparation of preparing an Issuing Entity Issuer Request and Officer’s 's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(xxiZ) the preparation of Issuing Entity preparing Issuer Orders and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders of and to the Rating Agencies notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(xxiiAA) the execution executing and delivery of delivering new Notes conforming to any supplemental indenture (Section 9.6);
(xxiiiBB) notifying the notification of Noteholders and the Rating Agencies of redemption of the Notes or the duty to cause causing the Indenture Trustee to provide such notification (Section 10.210.1);
(xxivCC) the preparation of preparing and delivering all Officer’s Certificates, 's Certificates and Opinions of Counsel and obtaining any Independent Certificates with respect to any requests by the Issuing Entity Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.1(a));
(xxvDD) the preparation preparing and delivery of delivering Officer’s 's Certificates and the obtaining of any Independent Certificates, if necessary, Certificates necessary for the release of property from the Lien lien of the Indenture (Section 11.1(b));
(xxviEE) notifying the preparation 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);
(FF) preparing and delivery delivering to the Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and;
(xxviiGG) the recording of the Indenture, if applicable (Section 11.15); and
(HH) preparing Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13).
(ii) 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);
(B) 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 its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any losses, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee (in its individual and trust capacities) and its agents for, and hold them harmless against, any losses, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
(b) Duties with Respect to the Trust.Interest Rate Swap Agreements. ---------------------------------------------------------
(i) In addition Promptly following the early termination of an Interest Rate Swap Agreement due to a Termination Event or an Event of Default (as such terms are defined in the related Interest Rate Swap Agreement) (unless the Indenture Trustee is selling or liquidating the Trust Estate), the Administrator agrees to use reasonable efforts to cause the Issuer to enter into a replacement interest rate swap agreement on terms similar to those of such Interest Rate Swap Agreement with an eligible swap counterparty. If and to the duties of the Administrator set forth aboveextent any Swap Termination Payments that are received from a Swap Counterparty are to be applied as an initial payment to a replacement Swap Counterparty, the Administrator shall perform direct the duties Indenture Trustee to retain such amounts and obligations shall provide the Indenture Trustee with written instructions regarding the application and payment of such amounts.
(ii) If a Swap Counterparty is required to collateralize any Interest Rate Swap transaction, the Administrator shall send written instructions to the Indenture Trustee to establish individual collateral accounts and to hold any securities deposited therein in trust and invest any cash amounts therein in accordance with the provisions of the Issuing Entity under Interest Rate Swap Agreement.
(iii) The Administrator shall notify the Asset Representations Review Agreement and shall perform such calculations, and shall prepare for execution by the Issuing Entity or the Indenture Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Issuing Entity occurrence or the Trustee to performexistence of a default, prepare, file event of default or deliver pursuant to the Related Agreements, and at the request of the Trustee shall take all appropriate action that it is the duty of the Issuing Entity similar condition or the Trustee to take pursuant to the Related Agreements (other than event with respect to Sections 11.14any credit support provider for a Swap Counterparty.
(iv) The Administrator shall notify the Swap Counterparties of any proposed amendment or supplement to this Agreement or to any of the Indenture, 11.15 the Purchase Agreement, the Sale and 11.16 of Servicing Agreement or the Trust Agreement). Subject If such proposed amendment or supplement would adversely affect any of the Swap Counterparties' rights or obligations under the Interest Rate Swap Agreements or modify the obligations of, or impair the ability of the Issuer to Section 5 fully perform any of this its obligations under, the Interest Rate Swap Agreements, the Administrator shall obtain the consent of the Swap Counterparties prior to the adoption of such amendment or supplement, provided, the Swap Counterparties' consent to any such amendment or supplement shall not be unreasonably withheld, and provided further, a Swap Counterparty's consent will be deemed to have been given if the Swap Counterparty does not object in writing within ten Business Days of receipt of a written request for such consent and in accordance with the terms of the Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of any proposed amendment or supplement to any Interest Rate Swap Agreement, the Administrator shall administer, perform or supervise provide the performance of such other activities in connection Rating Agencies with the Collateral (including the Related Agreements) as are not covered by any a copy of the foregoing and as are expressly requested by amendment or supplement. Unless the Trustee and are reasonably within amendment or supplement clarifies any term or provision, corrects any inconsistency, cures any ambiguity, or corrects any typographical error in the capability Interest Rate Swap Agreement, an amendment or supplement to the Interest Rate Swap Agreement will be effective only after satisfaction of the AdministratorRating Agency Condition.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, if any Certificates are held by any Person other than the Depositor, the Administrator shall be responsible for promptly notifying the Trustee in the event that any withholding tax is imposed on the Trust’s payments (or allocations of income) to an Owner as contemplated in Section 5.2(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to the contrary, the Administrator shall be responsible for performance of the duties of the Trustee (if any) set forth in Sections 5.2(a), (b) and (c), the first sentence of Section 5.5 and Section 5.6(a) of the Trust Agreement with respect to, among other things, accounting and reports to Owners; provided, however, that the Trustee shall retain responsibility for the distribution of the Schedule K-1s necessary to enable each Owner to prepare its federal and state income tax returns.
(iv) If any Certificates are held by any Person other than the Depositor, the Administrator shall satisfy its obligations with respect to clauses (ii) and (iii) by retaining, at the expense of the Trust payable by the Servicer, a firm of Independent certified public accountants (the “Accountants”) reasonably acceptable to the Trustee, which Accountants shall perform the obligations of the Administrator thereunder. In connection with clause (ii), the Accountants will provide, on or prior to the date on which the Trustee receives its notice from the Administrator under such clause, a letter in form and substance satisfactory to the 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 Accountants 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.
(v) 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 Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuing Entity and shall be, in the Administrator’s opinion, no less favorable to the Issuing Entity than would be available from unaffiliated parties.
(vii) The Administrator hereby agrees to execute on behalf of the Issuing Entity all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to the Basic Documents or otherwise by law.
Appears in 1 contract
Samples: Administration Agreement (Mmca Auto Owner Trust 2001 2)
