Exhibit 10.2
This OWNER TRUST ADMINISTRATION AGREEMENT dated as of [___] among
NATIONAL CITY AUTO RECEIVABLES TRUST 200_-_, a Delaware business trust (the
"Issuer"), NATIONAL CITY BANK, a national banking association, as administrator
(the "Owner Trust Administrator"), and [INDENTURE TRUSTEE], a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee (the
"Indenture Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer is issuing [___]% Asset Backed Notes, Class [A-1],
[___]% Asset Backed Notes, Class [A-2], [___]% Asset Backed Notes, Class [A-3]
and [___]% Asset Backed Notes, Class [A-4] (collectively, the "Class [A] Notes")
and [___]% Asset Backed Notes, Class [B] (the "Class [B] Notes" and, together
with the Class [A] Notes, the "Notes") pursuant to the Indenture dated as of
[___] (as amended and supplemented from time to time, the "Indenture"), between
the Issuer and the Indenture Trustee and is issuing [___]% Asset Backed
Certificates, Class [C] (the "Class [C] Certificates" or the "Certificates" and,
together with the Notes, the "Securities") pursuant to the Amended and Restated
Trust Agreement dated as of [___] (as amended and supplemented from time to
time, the "Trust Agreement"), between National City Vehicle Receivables Inc., as
depositor, and [OWNER TRUSTEE], not in its individual capacity but solely as
owner trustee (capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Indenture or the Trust
Agreement, as applicable);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Securities and of certain beneficial ownership
interests in the Issuer, including (i) a Sale and Servicing Agreement dated as
of [___] (as amended and supplemented from time to time, the "Sale and Servicing
Agreement"), among the Issuer, National City Bank, as seller (in such capacity,
the "Seller"), servicer (in such capacity, the "Servicer"), administrator and
custodian, and the Indenture Trustee, (ii) a Letter of Representations dated
[___] (as amended and supplemented from time to time, the "Depository
Agreement"), among the Issuer, the Indenture Trustee, the Owner Trust
Administrator and The Depository Trust Company ("DTC") relating to the Notes and
the Certificates and (iii) the Indenture (the Sale and Servicing Agreement, the
Depository Agreement, the Indenture and the Trust Agreement being referred to
hereinafter collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and [OWNER
TRUSTEE], as owner trustee (the "Owner Trustee"), are required to perform
certain duties in connection with (a) the Notes and the collateral therefor
pledged pursuant to the Indenture (the "Collateral") and (b) the beneficial
ownership interests in the Issuer (the registered holders of such interests
being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the Owner
Trust Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this
Agreement and the Related Agreements as the Issuer and the Owner Trustee may
from time to time request; and
WHEREAS, the Owner Trust Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the Issuer
and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE OWNER TRUST ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE DEPOSITORY AGREEMENT AND THE INDENTURE.
(i) The Owner Trust Administrator agrees to perform all its
duties as Owner Trust Administrator and all the duties of the Issuer
and the Owner Trustee under the Depository Agreement. In addition, the
Owner Trust Administrator shall consult with the Owner Trustee
regarding the duties of the Issuer or the Owner Trustee under the
Indenture and the Depository Agreement. The Owner Trust Administrator
shall monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Indenture and the Depository
Agreement. The Owner Trust Administrator shall prepare for execution by
the Issuer, or shall cause the preparation by other appropriate persons
of, all such documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or the Owner Trustee
to prepare, file or deliver pursuant to the Indenture and the
Depository Agreement. In furtherance of the foregoing, the Owner Trust
Administrator shall take all appropriate action that is the duty of the
Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required
with respect to the following matters under the Indenture
(parenthetical section references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.04);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.08(b));
(C) reserved;
(D) 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 2.02);
(E) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of collateral (Section 4.04);
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(F) 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);
(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 3.03);
(H) the direction to the Indenture Trustee to deposit moneys
with Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(I) the obtaining and preservation of the 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 3.04);
(J) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(K) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate
and certain other statements as to compliance with the
Indenture (Sections 3.06 and 3.09);
(L) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(M) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of a Servicer Default under 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 with respect to the
Receivables, the taking of all reasonable steps available to
remedy such failure (Section 3.07(d));
(N) the duty to cause the Servicer to comply with Sections
4.09, 4.10, 4.11 and Article IX of the Sale and Servicing
Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations
under the Indenture (Section 3.10(b));
(P) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer or the Seller under
the Sale and Servicing Agreement and by the Seller or the
Company under the Receivables Purchase Agreement (Section
3.19);
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(Q) the monitoring of the Issuer'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 4.01);
(R) 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 5.04);
(S) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(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 with the names and
addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(V) provide reasonable and appropriate assistance to the
Depositor or its designees (including [___]), as applicable,
with the preparation and filing with the Commission, any
applicable state agencies and the Indenture Trustee of
documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary,
to the Noteholders (Section 7.03);
(W) the opening of one or more accounts in the Issuer's name,
the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds
in the Trust Accounts (Sections 8.02 and 8.03);
(X) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Trust Estate (Sections 8.04 and 8.05);
(Y) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of
notices with respect to such supplemental indentures (Sections
9.01, 9.02 and 9.03);
(Z) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.05);
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(AA) the duty to notify Noteholders of redemption of the Notes
or to cause the Indenture Trustee to provide such notification
(Section 10.02);
(BB) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section
11.01(a));
(CC) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if necessary,
for the release of property from the lien of the Indenture
(Section 11.01(b));
(DD) the notification of the Rating Agencies, upon the failure
of the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.04 of the
Indenture (Section 11.04);
(EE) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.06);
(FF) the recording of the Indenture, if applicable (Section
11.14);
(GG) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.12);
(HH) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section
3.03); and
(II) provide the Indenture Trustee with 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 and local income or
franchise tax returns (Section 6.06).
(ii) The Owner Trust 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 compensation of a trustee of
an express trust);
(B) 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), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
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(C) indemnify the Indenture Trustee and any Separate Trustee
and their respective 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 and the other Basic
Documents, 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, successors,
assigns and servants in accordance with Section 8.02 of the
Trust Agreement to the extent that amounts thereunder have not
been paid pursuant to Section 5.06 of the Sale and Servicing
Agreement.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties of the Owner Trust Administrator
set forth above, the Owner Trust Administrator shall perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the Issuer or
the Owner Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the Related
Agreements or Section 5.05(a), (b), (c) or (d) of the Trust Agreement,
and at the request of the Owner Trustee shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take
pursuant to the Related Agreements. In furtherance thereof, the Owner
Trustee shall, on behalf of itself and of the Issuer, execute and
deliver to the Owner Trust Administrator and to each successor Owner
Trust Administrator appointed pursuant to the terms hereof, one or more
powers of attorney substantially in the form of Exhibit A hereto,
appointing the Owner Trust 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. Subject to Section 5 of this
Agreement, and in accordance with the directions of the Owner Trustee,
the Owner Trust Administrator shall administer, perform or supervise
the performance of such other activities in connection with the
Collateral (including the Related Agreements) as are not covered by any
of the foregoing provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the Owner Trust
Administrator. Such responsibilities shall include providing to the
Depositor and the Indenture Trustee the monthly servicing report in an
appropriate electronic form and shall exclude the actual filing of any
reports pursuant to the Securities Exchange Act of 1934.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Owner Trust Administrator shall be
responsible for promptly notifying the Owner Trustee and the Paying
Agent in the event that any withholding tax is imposed on the Trust's
payments (or allocations of income) to an Owner as contemplated in
Section 5.02(d) of the Trust Agreement. Any such notice shall specify
the amount of any withholding tax required to be withheld by the Owner
Trustee and the Paying Agent pursuant to such provision.
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(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Owner Trust Administrator shall
be responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(a), (b), (c) and (d), the penultimate sentence of
Section 5.05 and Section 5.06(a) of the Trust Agreement with respect
to, among other things, accounting and reports to Owners; provided,
however, that the Paying Agent shall distribute the Schedule K-1s (as
prepared by the Administrator) necessary to enable each Owner to
prepare its federal and state income tax returns.
(iv) The Owner Trust Administrator shall satisfy its
obligations with respect to clauses (ii) and (iii) above by retaining,
at the expense of the Trust payable by the Owner Trust Administrator, a
firm of independent public accountants (the "Accountants") acceptable
to the Owner Trustee, which shall perform the obligations of the Owner
Trust Administrator thereunder. In connection with paragraph (ii)
above, the Accountants will provide prior to [DATE] a letter in form
and substance satisfactory to the Owner Trustee as to whether any tax
withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the
Code. The 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 Owner Trust Administrator shall perform the duties of
the Owner Trust Administrator including, without limitation, those
specified in Sections 8.01, 8.02 and 10.02 of the Trust Agreement
required to be performed in connection with the fees, expenses and
indemnification and the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Owner
Trust Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Owner Trust Administrator may
enter into transactions or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Owner Trust Administrator's opinion, no less favorable
to the Issuer than would be available from unaffiliated parties.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of
the Owner Trust Administrator are non-ministerial, the Owner Trust
Administrator shall not take any action unless within a reasonable time
before the taking of such action, the Owner Trust Administrator shall
have notified the Owner Trustee of the proposed action and the Owner
Trustee shall have withheld consent or provided an alternative
direction. Unless explicitly provided under this Owner Trust
Administration Agreement, for the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
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(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the
collection of the Receivables or Eligible Investment
Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Owner Trust
Administrators or Successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Owner Trust Administrator shall not be obligated to, and
shall not, (x) make any payments to the Noteholders under the Related
Agreements, (y) sell the Trust Estate pursuant to Section 5.04 of the
Indenture or (z) take any other action that the Issuer directs the
Owner Trust Administrator not to take on its behalf.
2. RECORDS. The Owner Trust Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Depositor at any time during normal business hours.
3. COMPENSATION. As compensation for the performance of the Owner Trust
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Owner Trust Administrator shall be paid by the
Servicer as set forth in a separate agreement.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The Owner
Trust Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
5. INDEPENDENCE OF THE OWNER TRUST ADMINISTRATOR. For all purposes of
this Agreement, the Owner Trust Administrator shall be an independent contractor
and shall not be subject to the supervision of the Issuer or the Owner Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the Owner
Trust Administrator shall have no authority to act for or represent the Issuer
or the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Owner Trust Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any
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of them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. OTHER ACTIVITIES OF OWNER TRUST ADMINISTRATOR.
(a) Nothing herein shall prevent the Owner Trust Administrator or its
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other person or entity
even though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
(b) The Owner Trust Administrator and its Affiliates may generally
engage in any kind of business with any person party to a Related Agreement, any
of its Affiliates and any person who may do business with or own securities of
any such person or any of its Affiliates, without any duty to account therefor
to the Issuer, the Owner Trustee or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF OWNER TRUST
ADMINISTRATOR.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and (f), the Owner Trust Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days' prior
written notice.
(c) Subject to Sections 8(e) and (f), the Issuer may remove the Owner
Trust Administrator without cause by providing the Owner Trust Administrator
with at least 60 days' prior written notice.
(d) Subject to Sections 8(e) and (f), at the sole option of the Issuer,
the Owner Trust Administrator may be removed immediately upon written notice of
termination from the Issuer to the Owner Trust Administrator if any of the
following events shall occur:
(i) the Owner Trust Administrator shall default in the
performance of any of its duties under this Agreement and, after notice
of such default, shall not cure such default within ten Business Days
(or, if such default cannot be cured in such time, shall not give
within ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Owner Trust
Administrator in any involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Owner Trust Administrator or any substantial
part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Owner Trust Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any
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such law, shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Owner Trust Administrator or any substantial part of its property,
shall consent to the taking of possession by any such official of any
substantial part of its property, shall make any general assignment for
the benefit of creditors or shall fail generally to pay its debts as
they become due.
(iv) The Owner Trust Administrator agrees that if any of the
events specified in clauses (ii) or (iii) of this Section shall occur,
it shall give written notice thereof to the Issuer and the Indenture
Trustee within seven days after the happening of such event.
(e) No resignation or removal of the Owner Trust Administrator pursuant
to this Section shall be effective until (i) a successor Owner Trust
Administrator shall have been appointed by the Issuer and (ii) such successor
Owner Trust Administrator shall have agreed in writing to be bound by the terms
of this Agreement in the same manner as the Owner Trust Administrator is bound
hereunder and (iii) the Owner Trustee and the Indenture Trustee consent to the
successor Owner Trust Administrator.
(f) The appointment of any successor Owner Trust Administrator shall be
effective only after receipt of written confirmation from each Rating Agency
that the proposed appointment will not result in the qualification, downgrading
or withdrawal of any rating assigned to the Notes or the Certificates by such
Rating Agency.
(g) A successor Owner Trust Administrator shall execute, acknowledge
and deliver a written acceptance of its appointment hereunder to the resigning
Owner Trust Administrator and to the Issuer. Thereupon the resignation or
removal of the resigning Owner Trust Administrator shall become effective, and
the successor Owner Trust Administrator shall have all the rights, powers and
duties of the Owner Trust Administrator under this Agreement. The successor
Owner Trust Administrator shall mail a notice of its succession to the
Noteholders and the Certificateholders. The resigning Owner Trust Administrator
shall promptly transfer or cause to be transferred all property and any related
agreements, documents and statements held by it as Owner Trust Administrator to
the successor Owner Trust Administrator and the resigning Owner Trust
Administrator shall execute and deliver such instruments and do other things as
may reasonably be required for fully and certainly vesting in the successor
Owner Trust Administrator all rights, power, duties and obligations hereunder.
(h) In no event shall a resigning Owner Trust Administrator be liable
for the acts or omissions of any successor Owner Trust Administrator hereunder.
(i) In the exercise or administration of its duties hereunder and under
the Related Documents, the Owner Trust Administrator may act directly or through
its agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trust Administrator shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trust Administrator with due care.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the
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Owner Trust Administrator pursuant to Section 8(b) or (c), respectively, the
Owner Trust Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Owner Trust Administrator shall forthwith upon such termination pursuant to
Section 8(a) deliver to the Issuer all property and documents of or relating to
the Collateral then in the custody of the Owner Trust Administrator. In the
event of the resignation or removal of the Owner Trust Administrator pursuant to
Section 8(b) or (c), respectively, the Owner Trust Administrator shall cooperate
with the Issuer and take all reasonable steps requested to assist the Issuer in
making an orderly transfer of the duties of the Owner Trust Administrator.
10. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(i) if to the Issuer or the Owner Trustee, to:
National City Auto Receivables Trust 200_-_
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
(ii) if to the Owner Trust Administrator, to:
[---]
Attention: [___]
(iii) if to the Indenture Trustee, to:
[---]
Attention: [___]
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. AMENDMENTS. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Owner Trust
Administrator and the Indenture Trustee, with the written consent of the Owner
Trustee, without the consent of the Noteholders and the Certificateholders, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or Certificateholders; provided that such amendment will not
materially and adversely affect the interest of any Noteholder or
Certificateholder. This Agreement may also be amended by the Issuer, the Owner
Trust Administrator and the Indenture Trustee with the written consent of the
Owner Trustee, Noteholders holding not less than a majority of the Outstanding
Amount of the Class [A] Notes, Noteholders holding not less than a majority of
the Outstanding Amount of the Class [B] Notes, and the Holders of Outstanding
Class [C] Certificates evidencing not less than a majority of the Outstanding
Class [C] Certificate Balance (excluding for purposes of this Section 11
Certificates held by the Seller or any of its affiliates) for the purpose of
adding any provisions to or changing in any manner or eliminating
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any of the provisions of this Agreement or of modifying in any manner the rights
of Noteholders or the Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables or distributions
that are required to be made for the benefit of the Noteholders or
Certificateholders or (ii) reduce the aforesaid percentage of the holders of
Class [A] Notes, the Class [B] Notes or the Class [C] Certificates which are
required to consent to any such amendment, without the consent of the holders of
all the outstanding Notes and Certificates. Notwithstanding the foregoing, the
Owner Trust Administrator may not amend this Agreement without the permission of
the Seller, which permission shall not be unreasonably withheld.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the
Owner Trust Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Owner Trust Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the Owner Trust
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Owner Trust Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Owner Trust Administrator is bound hereunder and represents
that it has the financial ability to satisfy its indemnification obligations
hereunder. Notwithstanding the foregoing, the Owner Trust Administrator can
transfer its obligations to any affiliate that succeeds to substantially all of
the assets and liabilities of the Owner Trust Administrator and who has
represented and warranted that it is not less creditworthy of the Owner Trust
Administrator. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or
12
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. NOT APPLICABLE TO [INDENTURE TRUSTEE] IN OTHER CAPACITIES. Nothing
in this Agreement shall affect any obligation [INDENTURE TRUSTEE] may have in
any other capacity.
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by the Owner Trustee solely in its capacity as
Owner Trustee and in no event shall the Owner Trustee in its individual capacity
or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by the Indenture Trustee solely as Indenture
Trustee and in no event shall the Indenture Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
(c) No recourse under any obligation, covenant or agreement of the
Issuer contained in this Agreement shall be had against any agent of the Issuer
(including the Owner Trust Administrator and the Owner Trustee) as such by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement is solely an obligation of the Issuer as a Delaware business trust,
and that no personal liability whatever shall attach to or be incurred by any
agent of the Issuer (including the Owner Trust Administrator and the Owner
Trustee), as such, under or by reason of any of the obligations, covenants or
agreements of the Issuer contained in this Agreement, or implied therefrom, and
that any and all personal liability for breaches by the Issuer of any such
obligations, covenants or agreements, either at common law or at equity, or by
statute or constitution, of every such agent is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
19. THIRD-PARTY BENEFICIARY. The Seller, the Depositor and the Owner
Trustee are third-party beneficiaries to this Agreement and are entitled to the
rights and benefits hereunder and may enforce the provisions hereof as if each
were a party hereto.
20. NONPETITION COVENANTS. Notwithstanding any prior termination of
this Agreement, the Owner Trust Administrator and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to the Issuer, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court of government
authority for the purpose of commencing or sustaining a case against the Issuer
13
under any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
21. LIABILITY OF OWNER TRUST ADMINISTRATOR. Notwithstanding any
provision of this Agreement, the Owner Trust Administrator shall not have any
obligations under this Agreement other than those specifically set forth herein,
and no implied obligations of the Owner Trust Administrator shall be read into
this Agreement. Neither the Owner Trust Administrator nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken in good faith by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct and in no
event shall the Owner Trust Administrator be liable under or in connection with
this Agreement for indirect, special or consequential losses or damages of any
kind, including lost profits, even if advised of the possibility thereof and
regardless of the form of action by which such losses or damages may be claimed.
Without limiting the foregoing, the Owner Trust Administrator may (a) consult
with legal counsel (including counsel for the Issuer), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts and (b) shall incur no liability
under or in respect if this Agreement by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by facsimile) believed by it to be genuine and signed or sent by the
proper party or parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
[ISSUER]
By: [OWNER TRUSTEE], not in
its individual capacity
but solely as Owner Trustee
By:
---------------------------------
Name:
Title:
[INDENTURE TRUSTEE],
not in its individual capacity
but solely as Indenture Trustee
By:
---------------------------------
Name:
Title:
NATIONAL CITY BANK,
as Owner Trust Administrator
By:
---------------------------------
Name:
Title:
15
EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK }
}
COUNTY OF NEW YORK }
KNOW ALL MEN BY THESE PRESENTS, that [OWNER TRUSTEE], a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") for [ISSUER] (the "Trust"), does hereby make, constitute
and appoint NATIONAL CITY BANK, as administrator (the "Owner Trust
Administrator") under the Owner Trust Administration Agreement dated [___] (the
"Owner Trust Administration Agreement"), among the Trust, the Owner Trust
Administrator and [INDENTURE TRUSTEE], as Indenture Trustee, as the same may be
amended from time to time, and its agents and attorneys, as Attorneys-in-Fact to
execute on behalf of the Owner Trustee or the Trust all such documents, reports,
filings, instruments, certificates and opinions as it should be the duty of the
Owner Trustee or the Trust to prepare, file or deliver pursuant to the Basic
Documents, or pursuant to Section 5.05(a), (b), (c) or (d) of the Trust
Agreement, including, without limitation, to appear for and represent the Owner
Trustee and the Trust in connection with the preparation, filing and audit of
federal, state and local tax returns pertaining to the Trust, and with full
power to perform any and all acts associated with such returns and audits that
the Owner Trustee could perform, including without limitation, the right to
distribute and receive confidential information, defend and assert positions in
response to audits, initiate and defend litigation, and to execute waivers of
restrictions on assessments of deficiencies, consents to the extension of any
statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Owner Trust Administration Agreement.
EXECUTED this ____ day of ____________, 200_.
[OWNER TRUSTEE]
not in its individual capacity but
solely as Owner Trustee
------------------------------------
Name:
Title:
STATE OF ___________ }
}
COUNTY OF _________ }
Before me, the undersigned authority, on this day personally appeared
_______________________, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that s/he signed the same
for the purposes and considerations therein expressed.
Sworn to before me this ___
day of _______, 200__.
Notary Public - State of ____________
