EXHIBIT 99.3
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of May 31, 2007 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among MERRILL AUTO TRUST SECURITIZATION 2007-1, a
Delaware statutory trust (the "Issuer"), XXXXXXX XXXXX BANK USA, a Utah
industrial bank, as administrator (in such capacity, the "Administrator"), U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as master servicer
(the "Master Servicer"), and HSBC BANK USA, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity but solely as Indenture
Trustee (in such capacity, the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and the
Certificates pursuant to the Amended and Restated Trust Agreement and has
entered into certain agreements in connection therewith, including (i) the Sale
and Servicing Agreement, dated as of May 31, 2007, among the Issuer, the Master
Servicer and the Depositor (the "Sale and Servicing Agreement") and (ii) the
Indenture, dated as of May 31, 2007, among the Issuer, the Indenture Trustee and
the Securities Administrator (the "Indenture", and together with the Sale and
Servicing Agreement, the "Related Agreements");
WHEREAS, the Issuer, Owner Trustee and the Master Servicer desire to have
the Administrator perform certain duties of the Master Servicer under the Sale
and Servicing Agreement 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;
WHEREAS, Xxxxxxx Xxxxx & Co. ("ML&Co." or the "Administrator Guarantor")
has provided a Guarantee, dated May 30, 2007, with respect to this Agreement in
the form attached hereto as Exhibit A (the "Administrator Guarantee"); and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer, Owner
Trustee and the Master Servicer on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
1. Definitions and Usage. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but not otherwise defined
in this Agreement (including the recitals) are defined in Appendix A to the Sale
and Servicing Agreement, which also contains rules as to usage that shall be
applicable herein.
2. Duties of the Administrator. (a) The Administrator agrees to perform all
of its duties as Administrator, if any, that are expressly set forth to be
performed by it under the Sale and Servicing Agreement or the Indenture.
(b) In addition to the foregoing, the Administrator shall take, in the name
and on behalf of the Master Servicer, all appropriate action that is the duty of
the Master Servicer to take, with respect to the following matters under the
Sale and Servicing Agreement (references are to sections of the Sale and
Servicing Agreement):
(A) The repurchase of any Receivable pursuant to Section 3.6,
including payment of the related Purchase Amount, as specified therein, to
the extent that a corresponding obligation to repurchase such Receivable
does not exist or is not exercisable under the related Receivables
Servicing Agreement or, if the corresponding obligation does exist and is
exercisable, the Receivables Servicer has failed to perform in its
repurchase obligation with respect thereto, and upon any such repurchase by
the Administrator, the Issuer and the Master Service shall complete any
assignments as may be necessary to transfer the related Receivable to the
Administrator and the Administrator shall succeed to all rights of the
Issuer and the Master Servicer to enforce any repurchase or other remedies
with respect to such Receivable as against the Receivables Servicer.
(B) The Administrator shall establish and maintain each of the
accounts set forth in Section 4.1(a). Such accounts may be maintained as
one or more separate accounts at the Administrator's discretion. Each such
deposit account shall be maintained as an account of the Administrator over
which the Administrator shall have sole dominion and control; provided
that, all Collections held by the Administrator shall be held by it for the
benefit of the Noteholders and the Counterparties and as agent of the
Issuer and as part of the Trust Property; and provided, further, that,
notwithstanding Section 4.1(a), the Administrator shall remit all
Collections into the Collection Account within two Business Days of its
receipt thereof if (i) MLBUSA is no longer the Administrator, (ii) MLBUSA
continues to act as Administrator but either (x) ML&Co does not have a
short-term senior unsecured debt rating equal to or higher than "Prime-1"
by Moody's, "A-1" by Standard & Poor's and "F-1" by Fitch or (y) the
Administrator Guarantee has been terminated or notice of its termination
has been issued by ML&Co (unless in the case of either of the events set
forth in clauses (x) and (y), MLBUSA itself has obtained each of the
ratings set forth in clause (x)) or (iii) an event with respect to the
Administrator that is described in Section 9(c) hereof shall have occurred
and is continuing.
(C) Subject to clause (B) above, on the Business Day prior to each
Payment Date, the Administrator on behalf of the Master Servicer shall pay
and remit to the Master Servicer for deposit in the Collection Account the
Available Collections for the related Collection Period and, to the extent
necessary to accomplish such remittance, shall instruct the Depository
Institution to withdraw from each deposit account referred to in Section
4.1(a) for deposit into the Collection Account the Available Collections
for the related Collection Period. The amount of Available Collections for
each Collection Period shall be determined by the Master Servicer based on
the remittance information provided by the Receivables Servicer under the
Receivables Servicing Agreement. The Administrator shall cause the
Receivables Servicer to provide monthly remittance information directly to
the Master Servicer, or to the extent the Receivables Servicer nonetheless
provide such information to the Administrator, the Administrator shall
transmit such information to the Master Servicer upon receipt. In the event
that the Administrator fails to remit Available Collections into the
Collection Account as and when required pursuant to this Section
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2(b)(C), the Securities Administrator shall make a demand of the
Administrator Guarantor for such amount pursuant to the Administrator
Guarantee.
(D) The Administrator shall be responsible for the calculation of the
aggregate Purchase Amount of the Receivables pursuant to Section 8.1, and
the timely reporting of such information to the Master Servicer.
(c) In addition to the foregoing, the Administrator shall take, in the name
and on behalf of the Issuer, all appropriate action that is the duty of the
Issuer or the Indenture Trustee to take, with respect to the following matters
under the Indenture (references are to sections of the Indenture):
(A) Upon request, pursuant to Section 3.4, assist in 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, except as provided in Section 3.18 of the Sale and Servicing
Agreement.
(B) The Administrator shall be responsible for the notification
pursuant to Section 3.7 of an Event of Servicing Termination under the Sale
and Servicing Agreement to the extent it has actual knowledge of such event
and, if such Event of Servicing Termination arises from the failure of the
Master Servicer to perform any of its duties under the Sale and Servicing
Agreement with respect to the Receivables, upon the request of the
Securities Administrator the taking of all reasonable steps available to
the Issuer to remedy such failure.
(C) The Administrator shall, pursuant to Section 3.7, be responsible
for the notification to the Securities Administrator of (i) the termination
of the Master Servicer and (ii) the appointment of a Successor Master
Servicer.
(D) Pursuant to Section 3.14, the Administrator shall have the duty to
cause the Master Servicer to comply with Sections 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.14 and 4.7 and Article VI of the Sale and Servicing
Agreement.
(E) The delivery of the written notice to the Indenture Trustee, the
Securities Administrator, the Counterparties and the Rating Agencies, set
forth in Section 3.19, of each Event of Default under the Indenture and
each default by the Master Servicer under the Sale and Servicing Agreement.
(F) Pursuant to Section 4.1, 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 an Opinion of
Counsel and the Independent Certificate relating thereto.
(G) Pursuant to Section 11.1(a), the preparation and delivery of all
Opinions of Counsel with respect to any request by the Issuer to the
Indenture Trustee to take any action under the Indenture.
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(d) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions or otherwise
deal with any of its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions received
from the Issuer and shall be, in the Administrator's opinion, no less favorable
to the Issuer than would be available from unaffiliated parties.
3. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer, the Master Servicer
and the Depositor at any time during normal business hours.
4. Compensation. As compensation for the performance of the Administrator's
obligations under this Agreement and, as reimbursement for its expenses related
thereto, the Administrator shall be entitled to receive a fee, for each
Collection Period equal to all reinvestment income on all Collections on the
Receivables prior to the deposit by the Administrator of such Collections into
the Collection Account as set forth in Section 2(b) hereof. The Administrator
shall retain such reinvestment income as and when realized by it. In addition,
the Administrator will receive on each Payment Date, the Administrator Fee which
shall be payable as provided in Section 8.2 of the Indenture.
5. Additional Matters Regarding the Master Servicer. (a) The Administrator
shall furnish to the Master Servicer from time to time such additional
information regarding the Receivables as the Master Servicer shall reasonably
request and which the Administrator can obtain without unreasonable difficulty
or expense, and shall assist the Master Servicer in obtaining information from
the Receivables Servicer.
(b) The Administrator shall provide a back-up certification to the Master
Servicer, in connection with the Master Servicer's obligation to execute and
file the Form 10-K Certification pursuant to Section 3.15 of the Sale and
Servicing Agreement, with respect to its compliance with its obligations under
this Agreement during the preceding calendar year.
(c) In the event that (i) the Master Servicer suffers any loss as a result
of the negligence or misconduct of the Receivables Servicer in the performance
of its duties under the Receivables Servicing Agreement, but (ii) the Master
Servicer is unable to obtain compensation for such loss pursuant to the
indemnification provisions of such Receivables Servicing Agreement or under the
Sale and Servicing Agreement, the Administrator shall indemnify the Master
Servicer for any such loss for which the Master Servicer was not indemnified by
the Receivables Servicer or reimbursed under the Sale and Servicing Agreement.
(d) In the event that (i) the information provided to the Master Servicer
by the Receivables Servicer contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements made, not misleading and (ii)
the Master Servicer suffers any loss as a result (notwithstanding the provisions
of Section 6.4 of the Sale and Servicing Agreement), and (iii) the Master
Servicer is unable to obtain compensation for such loss pursuant to the
provisions of the Receivables Servicing Agreement or under the Sale and
Servicing Agreement, the Administrator
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shall indemnify the Master Servicer for any such loss for which the Master
Servicer was not indemnified by the Receivables Servicer or reimbursed under the
Sale and Servicing Agreement.
(e) In the event that the Receivables Servicer fails to provide any report
or certification required by the Receivables Servicing Agreement in a timely
manner, which in the judgment of the Master Servicer prevents the Master
Servicer from preparing a certification or report required of the Master
Servicer, the Master Servicer shall notify the Administrator and take direction
from the Administrator whether the Master Servicer shall (i) proceed without
such information or certification for the Receivables Servicer, or (ii) delay
the filing of such report or certification pending receipt of such information
or certification from the Receivables Servicer, and in either case the
Administrator shall indemnify the Master Servicer for any loss as a result of
following the Administrator's direction.
(f) The indemnification rights of the Master Servicer as against the
Administrator in clauses (c), (d), and (e) of this Section 5, shall be subject
to the limitations set forth in clauses (i), (ii) and (iii) of Section 6.4(c) of
the Sale and Servicing Agreement. In addition, in no event shall the
Administrator be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Administrator has been advised of the likelihood of such loss or damage and
regardless of the form of action.
6. Independence of the Administrator. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject to
the supervision of the Issuer, the Master Servicer 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 or the Master
Servicer, the Administrator shall have no authority to act for or represent the
Issuer, the Master Servicer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer, the Master Servicer or the Owner
Trustee.
7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer, the Master Servicer 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 of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
8. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Master Servicer, the Owner
Trustee or the Indenture Trustee.
9. Term of Agreement; Resignation and Removal of Administrator. (a) This
Agreement shall continue in force until the termination of the Issuer in
accordance with Section 9.01 of the Trust Agreement, upon which event this
Agreement shall automatically terminate.
(b) Subject to Sections 9(d) and 9(e), the Administrator may resign its
duties hereunder by providing the Issuer and the Indenture Trustee with at least
sixty days' prior written notice.
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(c) Subject to Sections 9(d) and 9(e), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator (with a copy to the Indenture Trustee) if
any of the following events shall occur:
(i) the Administrator shall default in any material respect 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, such longer period acceptable to
the Issuer); or
(ii) an Insolvency Event with respect to the Administrator.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven (7) Business Days
after the happening of such event.
(d) No resignation or removal of the Administrator pursuant to this Section
9 shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder. The Issuer shall provide written notice of any
such resignation or removal to the Indenture Trustee, with a copy to the Rating
Agencies.
(e) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
10. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 9(a) or the
resignation or removal of the Administrator pursuant to Section 9(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
9(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
take all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
11. Assessment and Attestation Requirements. The Administrator agrees to
provide, at the Depositor's direction (i) reports on assessments of compliance
with applicable servicing criteria mutually agreed upon by the Administrator and
the Depositor and (ii) attestation reports on assessments of compliance with
such servicing criteria prepared by an independent public accountant sufficient
for the Issuer and the Depositor to satisfy their obligations under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
12. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
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(a) if to the Issuer or the Owner Trustee, to:
MERRILL AUTO TRUST SECURITIZATION 2007-1
c/o U.S. Bank Trust National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Administrator, to:
XXXXXXX XXXXX BANK USA
c/o Merrill Xxxxx & Co.
Four World Financial Center,
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Indenture Trustee, to:
HSBC BANK USA, NATIONAL ASSOCIATION
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
13. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Master
Servicer, the Administrator and the Indenture Trustee, with the written consent
of the Owner Trustee (which consent shall not unreasonably be withheld), 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 Master
Servicer, the Administrator and the Indenture Trustee with the written consent
of the Owner Trustee (which consent shall not unreasonably be withheld) and the
Noteholders of Notes evidencing not less than a majority of the Notes
Outstanding and the Certificateholders of Certificates evidencing not less than
a majority of the Certificate Percentage Interest for the
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purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
Noteholders or the Certificateholders; provided, however, that no such amendment
may (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 Noteholders and Certificateholders
which are required to consent to any such amendment, without the consent of the
Noteholders of all the Notes Outstanding and Certificateholders of Certificates
evidencing 100% of the Certificate Percentage Interest. Promptly after the
execution of any such amendment, the Administrator shall furnish written
notification of such amendment to each Rating Agency.
14. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee (which consent shall not unreasonably be
withheld) and subject to the satisfaction of the Rating Agency Condition in
respect thereof. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided that
such successor organization executes and delivers to the Issuer, the Master
Servicer, the Owner Trustee and the Indenture Trustee an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PROVISIONS THAT WOULD APPLY THE LAW OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
16. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
18. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
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19. No Set-off. All payments required hereunder by the Administrator shall
be made without set-off or counterclaim of any nature.
20. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been signed on behalf of the Issuer by U.S. Bank Trust National Association not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall U.S. Bank Trust National Association 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 the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by HSBC Bank USA, National Association, not in
its individual capacity but solely as Indenture Trustee and in no event shall
HSBC Bank USA, National Association, in its individual capacity or any of its
officers, directors, employees, representatives or agents 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.
21. Third-Party Beneficiary. The Owner Trustee is a third-party beneficiary
to this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it was a party hereto.
22. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, neither the Administrator nor the Indenture Trustee shall, 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 or government authority for the
purpose of commencing or sustaining a case against the Issuer 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.
23. Rights of Indenture Trustee. The Indenture Trustee shall be provided
all of the rights, protections, immunities and indemnities afforded it under the
Indenture.
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IN WITNESS WHEREOF, the parties have caused this Administration Agreement
to be duly executed and delivered as of the day and year first above written.
MERRILL AUTO TRUST SECURITIZATION 2007-1
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Officer
XXXXXXX XXXXX BANK USA, as Administrator
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
EXHIBIT A
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Administrator Guarantee
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[On File]
