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EXECUTION COPY
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ADMINISTRATION AGREEMENT
by and among
XXXXX FARGO AUTO TRUST 2001-A
as Issuer
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Administrator
and
THE CHASE MANHATTAN BANK
as Indenture Trustee
Dated as of May 16, 2001
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TABLE OF CONTENTS
1. DEFINITIONS AND USAGE...................................................1
2. DUTIES OF THE ADMINISTRATOR.............................................2
3. RECORDS.................................................................8
4. COMPENSATION............................................................8
5. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER....................8
6. INDEPENDENCE OF THE ADMINISTRATOR.......................................8
7. NO JOINT VENTURE........................................................8
8. OTHER ACTIVITIES OF ADMINISTRATOR.......................................8
9. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.............8
10. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL........................9
11. NOTICES...............................................................10
12. AMENDMENTS............................................................10
13. SUCCESSORS AND ASSIGNS................................................11
14. GOVERNING LAW.........................................................11
15. HEADINGS..............................................................11
16. COUNTERPARTS..........................................................11
17. SEVERABILITY..........................................................11
18. NOT APPLICABLE TO XXXXX FARGO IN OTHER CAPACITIES.....................12
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE........12
20. THIRD-PARTY BENEFICIARY...............................................12
21. NONPETITION COVENANTS.................................................12
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of May 16, 2001 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among XXXXX FARGO AUTO TRUST 2001-A, a New York common
law trust (the "Issuer"), XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as administrator (the "Administrator"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and
the Certificates pursuant to the Trust Agreement and has entered into certain
agreements in connection therewith, including (i) the Sale and Servicing
Agreement, (ii) the Depository Agreements, and (iii) the Indenture (the Sale and
Servicing Agreement, the Depository Agreements and the Indenture being referred
to hereinafter collectively as the "Related Agreements");
WHEREAS, the Issuer and the Indenture Trustee desire to have the
Administrator perform certain duties of the Issuer and the Indenture Trustee
under the Related Agreements and to provide such additional services consistent
with the terms of this Agreement and the Related Agreements as the Issuer and
the Indenture Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Indenture Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. DEFINITIONS AND USAGE.
a. Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix X to the Sale and Servicing Agreement.
b. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires:
(1) accounting terms not otherwise defined in this Agreement,
and accounting terms partly defined in this Agreement to the extent not
defined, shall have the respective meanings given to them under
generally accepted accounting principles;
(2) terms defined in Article 9 of the UCC as in effect in the
State of New York and not otherwise defined in this Agreement are used
as defined in that Article;
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(3) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement;
(4) references to any Article, Section, Schedule or Exhibit
are references to Articles, Sections, Schedules and Exhibits in or to
this Agreement, and references to any paragraph, subsection, clause or
other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition;
(5) the term "including" means "including without limitation";
(6) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law
or regulation;
(7) references to any Person include that Person's successors
and assigns; and
(8) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
2. DUTIES OF THE ADMINISTRATOR.
a. Duties with Respect to the Indenture and the Depository
Agreements.
b. The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Depository
Agreements. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer under the Indenture and the
Depository Agreements.
c. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's duties under the Indenture and the Depository
Agreements.
d. The Administrator shall prepare for execution by the
Issuer, or shall cause the preparation by appropriate persons of, all
such documents, reports, filings, instruments, certificates and
opinions that shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Indenture and the Depository Agreements.
e. In furtherance of the foregoing, the Administrator shall
take all appropriate action that is the duty of the Issuer to take
pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under
the Indenture (references are to sections of the Indenture):
(1) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment of
a new Note Registrar and the location, or change in location,
of the Note Register (Section 2.4);
(2) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.2);
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(3) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of property from the lien of the
Indenture (Section 2.9);
(4) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.12);
(5) the maintenance of an office in the Borough of
Manhattan, City of New York, for registration of transfer or
exchange of Notes (Section 3.2);
(6) the duty to cause newly appointed Paying Agents,
if any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.3);
(7) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture
Trustee (Section 3.3);
(8) 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 or agreement included in
the Trust Estate (Section 3.4);
(9) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.5);
(10) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with
the Indenture (Sections 3.6 and 3.9);
(11) the identification to the Indenture Trustee in
an Officer's Certificate of any Person with whom the Issuer
has contracted to perform its duties under the Indenture
(Section 3.7(b));
(12) the notification of the Indenture Trustee and
the Rating Agencies of an Event of Servicing Termination under
the Sale and Servicing Agreement and, if such Event of
Servicing Termination arises from the failure of the Servicer
to perform any of its duties under the Sale and Servicing
Agreement with respect to the Receivables, the taking of all
reasonable steps available to remedy such failure (Section
3.7(d));
(13) the preparation and obtaining of documents and
instruments required for the transfer by the Issuer of its
properties or assets (Section 3.10(b));
(14) the duty to cause the Servicer to comply with
Sections 4.9, 4.10, 4.11, 4.12 and 5.5 of the Sale and
Servicing Agreement (Section 3.14);
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(15) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under
the Indenture and each default by the Servicer or the Seller
under the Sale and Servicing Agreement (Section 3.18);
(16) 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 Opinions of Counsel and the Independent Certificate
relating thereto (Section 4.1);
(17) the monitoring of the Issuer's obligations as to
the satisfaction, discharge and defeasance of the Notes and
the preparation of an Officer's Certificate and the obtaining
of an opinion of a nationally recognized firm of independent
certified public accountants, a written confirmation thereof
and the Opinions of Counsel relating thereto (Section 4.1);
(18) the preparation and delivery of an Officer's
Certificate to the Indenture Trustee after the occurrence of
any event which with the giving of notice and the lapse of
time would become an Event of Default under Section 5.1(c) of
the Indenture, its status and what action the Issuer is taking
or proposes to take with respect thereto (Section 5.1);
(19) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate
at one or more public or private sales called and conducted in
any manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(20) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of any co-trustee
or separate trustee (Sections 6.8 and 6.10);
(21) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.1);
(22) the preparation and, after execution by the
Issuer, the 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 7.3);
(23) the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment,
to the extent permitted, of funds in such accounts (Sections
8.2 and 8.3);
(24) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.4 and 8.5);
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(25) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.1, 9.2 and 9.3);
(26) the preparation and delivery of new Notes
conforming to any supplemental indenture (Section 9.6);
(27) the notification of Noteholders of redemption of
the Notes or duty to cause the Indenture Trustee to provide
such notification (Section 10.2);
(28) the preparation and delivery of all Officer's
Certificates and the obtaining of Opinions of Counsel and
Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(29) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.1(b));
(30) the notification of the Rating Agencies, upon
the failure of the Indenture Trustee to give such
notification, of the information required pursuant to Section
11.4 of the Indenture (Section 11.4);
(31) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.6); and
(32) the recording of the Indenture, if applicable
(Section 11.15).
f. Payment of Fees and Indemnification by the Administrator.
The Administrator will:
(1) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under
the Indenture (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust)
pursuant to the terms of the letter agreement between Administrator and
Indenture Trustee dated May 16, 2001;
(2) indemnify the Indenture Trustee (individually and in its
capacity as such) and its successors, assigns, directors, officers,
employees and agents against any and all loss, liability or expense
(including attorneys' fees and expenses) incurred by it in connection
with the performance of its duties by the Administrator hereunder;
provided, however, that the Administrator shall not be liable for or
required to indemnify Indenture Trustee from and against any of the
foregoing expenses arising or resulting from Indenture Trustee's own
willful misconduct, negligence or bad faith or to the extent arising
from the breach by Indenture Trustee of any of its representations and
warranties and covenants set forth in the Indenture;
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(3) pay to Owner Trustee from time to time reasonable
compensation for all services rendered by Owner Trustee under the Trust
Agreement (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust)
pursuant to the terms of Sections 8.1 and 8.2 of the Trust Agreement;
(4) indemnify Owner Trustee (individually and in its capacity
as such) and its successors, assigns, directors, officers, employees
and agents from and against, any and all loss, liability and expense
(including reasonable legal fees and expenses) of any kind and nature
whatsoever which may at any time be imposed on, incurred by, or
asserted against Owner Trustee or any Indemnified Party in any way
relating to or arising out of the Administrator's actions relating to
the administration of the Owner Trust Estate or the action or inaction
of Owner Trustee under the Trust Agreement, provided, however, that the
Administrator shall not be liable for or required to indemnify Owner
Trustee from and against any of the foregoing expenses arising or
resulting from any of the matters described in the third sentence of
Section 7.1 of the Trust Agreement.
(g) Additional Duties. In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of, and
shall execute on behalf of the 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, 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. Subject to Section 5 of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator:
(1) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Issuer's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
(2) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of all acts and undertakings of the Trust or the Owner
Trustee contemplated in Sections 5.5(a), (b), (c), (d) and (e), and
5.6(a) and 9.1 of the Trust Agreement and Sections 3.2, 3.3(b), (c),
(d) and (f), 4.3, 4.4, 4.7, 4.11(b), 5.1(a), 5.6, 8.1, 8.4, 10.1(e),
10.2(g) and (h) and 10.4 of the Sale and Servicing Agreement, with
respect to, among other things, accounting and reports to
Certificateholders.
(3) The Administrator will provide prior to June 30, 2001, a
certificate of an Authorized Officer in form and substance satisfactory
to the Owner Trustee as to whether any federal income taxes are being
withheld by it with respect to the Notes or
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Certificates. The Administrator shall be required to update the letter
in each instance that it determines that any additional tax withholding
is subsequently required or any previously required tax withholding
shall no longer be required.
(4) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required
to be performed in connection with the resignation or removal of the
Owner Trustee, and any other duties expressly required to be performed
by the Administrator pursuant to the Trust Agreement.
(5) 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.
h. Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(1) the amendment of or any supplement to the Indenture;
(2) 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 Permitted Investments);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(5) the removal of the Indenture Trustee.
i. Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments to
the Noteholders under the Related Agreements, (y) sell the Trust Estate pursuant
to Section 5.4 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
j. The Administrator shall hold the originals of any Book-Entry Notes
as an agent of the Indenture Trustee for purposes of the Note Depository
Agreement and not in its individual capacity.
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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 and the
Seller 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 $3,000 annually
which shall be solely an obligation of the Servicer.
5. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
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 Owner Trustee or the Indenture
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee (and, regardless of whether authorized by the Issuer, the
Administrator shall have no such authority at all with respect to the Indenture
Trustee) in any way and shall not otherwise be deemed an agent of the Issuer,
the Owner Trustee or the Indenture Trustee.
7. NO JOINT VENTURE. Nothing contained in this Agreement shall
constitute the 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, shall be construed to impose
any liability as such on any of them or shall be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
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 Owner Trustee or the Indenture
Trustee.
9. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
a. This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
b. Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days' prior
written notice.
c. Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
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d. Subject to Sections 9(e) and 9(f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall occur:
(1) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten (10) days (or, if such default
cannot be cured in such time, shall not give within ten (10) days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(2) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within sixty (60) days, in respect of the Administrator in
any involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(2) or (3) of this Section 9(c) shall occur, it shall give written notice
thereof to the Issuer and the Trustee within seven (7) days after the happening
of such event.
e. No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (1) a successor Administrator shall have been
appointed by the Issuer and (2) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
f. The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
g. Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement.
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
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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
the Indenture Trustee and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
11. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
a. if to the Issuer or the Owner Trustee, to:
Xxxxx Fargo Auto Trust 2001-A
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
b. if to the Administrator, to:
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Fargo Center
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
c. If to the Indenture Trustee, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. 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.
12. AMENDMENTS. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the 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, unless the Rating
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Agency Condition shall have been satisfied, such amendment will not, as set
forth in an Opinion of Counsel satisfactory to the Indenture Trustee and the
Owner Trustee, materially and adversely affect the interest of any Noteholder or
Certificateholder. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the Noteholders of Notes evidencing not less than a majority of the
Notes Outstanding and the Certificateholders of Certificates evidencing not less
than a majority of the Certificate Balance or the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of Noteholders or the
Certificateholders; provided, however, that no such amendment may increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or Certificateholders or reduce the
aforesaid percentage of the Noteholders and Certificateholders which are
required to consent to any such amendment, without the consent of the
Noteholders of all the Notes Outstanding and Certificateholders of Certificates
evidencing all the Certificate Balance. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the consent of the Seller,
which permission shall not be unreasonably withheld.
13. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer, the Owner Trustee and the Indenture Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, 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, the Owner Trustee or the
Indenture Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator; provided that
such successor organization executes and delivers to the 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 Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
14. GOVERNING LAW. This agreement shall be construed in accordance with
the laws of the State of New York, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
15. HEADINGS. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
17. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition
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or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. NOT APPLICABLE TO XXXXX FARGO IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any right or obligation Xxxxx Fargo may have in any other
capacity.
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
a. Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in the capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company 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 Chase Manhattan Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall The
Chase Manhattan Bank 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. For all purposes
of this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Indenture Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI of the Indenture.
20. THIRD-PARTY BENEFICIARY. The Owner Trustee and the Indenture
Trustee are third-party beneficiaries to this Agreement and are entitled to the
rights and benefits hereunder and may enforce the provisions hereof as if they
were parties hereto.
21. NONPETITION COVENANTS.
a. Notwithstanding any prior termination of this Agreement, the Seller,
the Administrator, the Owner Trustee and the Indenture Trustee shall not, prior
to the date which is one year and one day after the termination of this
Agreement with respect to the Issuer, acquiesce, petition join in, encourage 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.
Notwithstanding any prior termination of this Agreement, the Issuer, the
Administrator, the Owner Trustee and the Indenture Trustee shall not, prior to
the date which is one year and one day after the termination of this Agreement
with respect to the Seller, acquiesce, petition join in,
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encourage or otherwise invoke or cause the Seller to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Seller.
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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.
XXXXX FARGO AUTO TRUST 2001-A
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Administrator
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice-President
Acknowledged (for purposes
of Section 4):
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx XxxXxxxxxx
------------------------------
Name: Xxxxxxx XxxXxxxxxx
Title: Vice President
