Exhibit 10.2
This OWNER TRUST ADMINISTRATION AGREEMENT dated as of [___] among
[_________], ACTING NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE
OF REGIONS AUTO RECEIVABLES TRUST 200_-_, a Delaware common law trust (the
"Issuer"), REGIONS BANK, an Alabama state banking corporation, as
administrator (the "Owner Trust Administrator"), and [INDENTURE TRUSTEE], a [
] 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 Regions
Acceptance LLC, 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, Regions Bank, as seller
(in such capacity, the "Seller"), master servicer (in such capacity, the
"Master 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 Master Servicer Default under the Sale
and Servicing Agreement and, if such Master Servicer Default
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, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(N) the duty to cause the Master 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 Master 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 Master 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 Master 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
8
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
9
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:
Regions Auto Receivables Trust 200_-_
000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
(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 common law 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:
REGIONS 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 REGIONS 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 ____________
