Exhibit 10.4
EXECUTION COPY
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of June 1, 2004 among FIFTH THIRD
AUTO TRUST 2004-A, a Delaware statutory trust (the "Issuer"), FIFTH THIRD
BANK, an Ohio banking corporation ("Fifth Third (Ohio)"), as administrator (in
such capacity, the "Administrator"), and THE BANK OF NEW YORK, a New York
banking corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer is issuing 1.3975% Asset Backed Notes, Class A-1,
2.42% Asset Backed Notes, Class A-2, 3.19% Asset Backed Notes, Class A-3 and
3.70% Asset Backed Notes, Class A-4 (collectively, the "Class A Notes") and
3.61% 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 June 1, 2004
(as amended, supplemented and otherwise modified from time to time, the
"Indenture"), between the Issuer and the Indenture Trustee and is issuing
Asset Backed Certificates (the "Certificates" and, together with the Notes,
the "Securities") pursuant to the Amended and Restated Trust Agreement dated
as of June 1, 2004 (as amended, supplemented and otherwise modified from time
to time, the "Trust Agreement"), between Citigroup Vehicle Securities, Inc.,
as depositor (the "Depositor"), and Wilmington Trust Company (the "Owner
Trustee");
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 June 1, 2004 (as amended, supplemented and otherwise modified from time to
time, the "Sale and Servicing Agreement"), among the Issuer, the Depositor,
Fifth Third Auto Funding LLC, as seller (in such capacity, the "Seller"),
Fifth Third (Ohio), as servicer (in such capacity, the "Servicer"),
administrator and custodian and the Indenture Trustee, (ii) a Letter of
Representations dated June 16, 2004 (as amended, supplemented and otherwise
modified from time to time, the "Note Depository Agreement"), among the
Issuer, the Indenture Trustee, the Administrator and The Depository Trust
Company ("DTC") relating to the Notes and (iii) the Indenture (the Sale and
Servicing Agreement, the Note Depository Agreement, the Indenture and the
Trust Agreement being referred to hereinafter collectively as the "Related
Agreements") (capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement,
the Indenture or the Trust Agreement, as applicable);
WHEREAS, pursuant to the Related Agreements, the Issuer and 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 certificates issued pursuant to the Trust Agreement
(the "Certificates" and the registered holders of such Certificates being
referred to herein as the "Certificateholders");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee (in its capacity as 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 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 Administrator.
(a) Duties with Respect to the Note Depository Agreement and the
Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and all the duties of the Issuer and the Owner Trustee
under the Note Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or the
Owner Trustee under the Indenture and the Note Depository Agreement. 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 or the Owner Trustee's duties under the Indenture and the Note
Depository Agreement. The 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 Note
Depository Agreement. In furtherance of the foregoing, the 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):
(1) 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);
(2) 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);
(3) the notification of Noteholders of the final principal payment
on their Notes (Section 2.08(b));
(4) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
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(5) the maintenance of an office in the Borough of Manhattan, City
of New York, for registration of transfer or exchange of Notes
(Section 3.02);
(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 3.03);
(7) the direction to the Indenture Trustee to deposit moneys with
Paying Agents, if any, other than the Indenture Trustee (Section
3.03);
(8) the obtaining and preservation of the Issuer's qualification to
do business in each jurisdiction where the failure to do so would
materially and adversely affect 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);
(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 in accordance with Section 3.05 of the Indenture
(Section 3.05);
(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 as to
compliance with the Indenture (Sections 3.06 and 3.09);
(11) 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));
(12) 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));
(13) the duty to cause the Servicer to comply with the Sale and
Servicing Agreement (Section 3.14);
(14) the delivery of written notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture, of
each default on the part of the Servicer or the Seller of their
respective obligations under the Sale and Servicing Agreement, of
each default on the part of the Seller of its obligations under the
Receivables Purchase Agreement and of each default on the part of
the Transferor of its obligations under the Transfer and Sale
Agreement (Section 3.19);
(15) upon the request of the Indenture Trustee, the execution and
delivery of any instruments and the undertaking of any actions
reasonably necessary to carry out more effectively the purpose of
the Indenture (Section 3.20);
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(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 Opinion of Counsel
and the Independent Certificate relating thereto (Section 4.01);
(17) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of collateral (Section 4.04);
(18) 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);
(19) provide the Indenture Trustee with the information required by
law to enable each Noteholder to prepare its federal, state and
local income or franchise tax returns (Section 6.06);
(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 (Section 6.10);
(21) 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);
(22) provide reasonable and appropriate assistance to the Servicer
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 (Section 7.03);
(23) the opening of one or more accounts in accordance with the
Indenture and the Sale and Servicing Agreement (Section 8.02);
(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 8.04 and 8.05);
(25) the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(26) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.05);
(27) the duty to cause the Indenture Trustee to notify Noteholders
of redemption of the Notes (Section 10.02);
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(28) 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));
(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 11.01(b));
(30) the transmission to the Indenture Trustee of any notice
received by the Issuer from the Noteholders (Section 11.04);
(31) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.06); and
(32) the recording of the Indenture, if applicable (Section 11.14).
(ii) The Administrator shall:
(1) 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, as agreed to between the
Administrator and the Indenture Trustee in writing (which
compensation shall not be limited by any law relating to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee or any Separate Trustee upon its
request for all reasonable out-of-pocket expenses, advances and
disbursements reasonably incurred by the Indenture Trustee or
Separate Trustee, as the case may be, in connection with the
performance by the Indenture Trustee or Separate Trustee, as the
case may be, of its duties as Indenture Trustee or Separate Trustee;
(3) indemnify the Indenture Trustee and any Separate Trustee in
accordance with Section 6.07 of their Indenture;
(4) pay the Owner Trustee as compensation for its services
under the Trust Agreement such fees as have been separately agreed
upon between the Administrator and the Owner Trustee, and the
Administrator shall reimburse the Owner Trustee for its other
reasonable expenses under the Trust Agreement, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and
its duties under the Trust Agreement and under the Basic Documents;
and
(5) indemnify the Owner Trustee and its successors, assigns,
agents and servants in accordance with Section 8.02 of the Trust
Agreement to the extent
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that amounts thereunder have not been paid pursuant to Section 5.06
of the Sale and Servicing Agreement.
The indemnities and obligations set forth in Sections (1) (2),
(3) and (5) above shall survive the discharge of the Indenture, the
dissolution of the Issuer and, the resignation or removal of
Indenture Trustee, the Owner Trustee or the Administrator, as
applicable.
(b) Additional Duties.
(i) 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 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 Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers
of attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer
for the purpose of executing on behalf of the Owner Trustee and the
Issuer all such documents, reports, filings, instruments, certificates
and opinions. 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.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the 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 a Certificateholder as contemplated in Section
5.02(c) of the Trust Agreement. Any such notice shall specify the amount
of any withholding tax required to be withheld by the Owner Trustee and
the Paying Agent pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the 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 Certificateholders; provided, however,
that the Paying Agent shall distribute the Schedule K-1s (as prepared by
the Administrator) necessary to enable each Certificateholder to prepare
its federal and state income tax returns.
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(iv) The Administrator may satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of the Trust
payable by the Administrator, a firm of independent public accountants
(the "Accountants"), which shall perform the obligations of the
Administrator thereunder. If the Administrator elects to retain the
Accountants pursuant to the preceding sentence, then in connection with
paragraph (ii) above, the Accountants will provide prior to July 20, 2004
a letter as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply
with the requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no
longer be required.
(v) The Administrator shall perform the duties of the Administrator
including, without limitation, those specified in Section 10.02 of the
Trust Agreement in connection with the resignation or removal of the
Owner Trustee, and any other duties expressly required to be performed by
the Administrator under the Trust Agreement.
(vi) 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.
(c) Non-Ministerial Matters.
(i) Notwithstanding anything to the contrary in this Agreement, 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. Unless explicitly provided under this
Administration Agreement, for the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) 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);
(B) 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
(C) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any
payments to the
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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 Administrator not to take on its behalf.
2. 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 upon reasonable written request
by the Issuer and the Depositor at any time during normal business hours.
3. 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 paid by the Servicer as
set forth in a separate agreement.
4. 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.
5. 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 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 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 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 of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. Other Activities of Administrator.
(a) 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 even though such
Person may engage in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
(b) The 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 Administrator.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
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(b) Subject to Sections 8(e) and (f), the 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
Administrator without cause by providing the 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 Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after written 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); or
(ii) the occurrence of an Insolvency Event with respect to the
Administrator.
The Administrator agrees that if any of the events specified in clause
(ii) 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 Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer, (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 and (iii) the Owner Trustee and the
Indenture Trustee consent to the appointment of the successor Administrator.
(f) The termination of the Administrator and the appointment of any
successor Administrator shall be effective only if the Rating Agency Condition
is satisfied with respect to the appointment of such successor Administrator.
(g) A successor Administrator shall execute, acknowledge and deliver a
written acceptance of its appointment hereunder to the resigning Administrator
and to the Issuer. Thereupon the resignation or removal of the resigning
Administrator shall become effective, and the successor Administrator shall
have all the rights, powers and duties of the Administrator under this
Agreement. The successor Administrator shall mail a notice of its succession
to the Noteholders and the Certificateholders. The resigning Administrator
shall promptly transfer or cause to be transferred all property and any
related agreements, documents and statements held by it as Administrator to
the successor Administrator and the resigning Administrator shall execute and
deliver such instruments and do other things as may reasonably be required for
fully and certainly vesting in the successor Administrator all rights, power,
duties and obligations hereunder.
(h) In no event shall a resigning Administrator be liable for the acts or
omissions of any successor Administrator hereunder.
(i) The Administrator may, at any time without notice or consent,
delegate any or all of its duties under this Agreement to any of its
Affiliates or to sub-contractors who are in the
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business of performing such duties; provided, that no such delegation shall
relieve the Administrator of its responsibility with respect to such duties
and the Administrator shall remain obligated and liable to the Issuer and the
Indenture Trustee for its duties hereunder as if the Administrator alone were
performing such duties. The Administrator shall pay any compensation payable
to such Person from its own funds and none of the Issuer, the Owner Trustee,
the Indenture Trustee, the Noteholders or the Certificateholders shall have
any liability to such Person with respect thereto. Without limitation of the
foregoing, the Servicer shall be responsible for compliance by any such Person
with all applicable laws, rules or regulations. Any agreement that may be
entered into by the Administrator and a Person that provides for any
delegation of the Administrator's duties hereunder to such Person shall be
deemed to be between the Administrator and such Person alone, and the Issuer,
the Owner Trustee, the Indenture Trustee and Holders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect thereto.
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 Administrator pursuant to Section 8(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 8(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 8(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.
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:
Fifth Third Auto Trust 2004-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(ii) if to the Administrator, to:
Fifth Third Bank
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx (MD 1090QA)
(iii) if to the Indenture Trustee, to:
The Bank of New York
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101 Xxxxxxx Street, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Securities Unit
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.
(a) Any term or provision of this Agreement may be amended in writing by
the Administrator, the Issuer and the Indenture Trustee with the prior written
consent of the Owner Trustee (whose consent shall not be unreasonably
withheld) and the Depositor (whose consent shall not be unreasonably withheld)
but without the consent of any Noteholder, any Certificateholder or any other
Person; provided that such amendment shall not, as evidenced by an Opinion of
Counsel delivered to the Indenture Trustee and to that effect, materially and
adversely affect the interests of the Noteholders. An amendment shall be
deemed not to materially and adversely affect the interests of the Noteholders
and no Opinion of Counsel to that effect shall be required if the Rating
Agency Condition is satisfied with respect to such amendment.
(b) Any term or provision of this Agreement may be amended in writing by
the Administrator with the prior written consent of the Depositor (which shall
not be unreasonably withheld) but without the consent of the Indenture
Trustee, any Noteholder, the Issuer, the Owner Trustee (subject to Section
11(e) below) or any other Person to add, modify or eliminate any provisions as
may be necessary or advisable in order to enable the Administrator, the
Seller, the Servicer or any of their Affiliates to comply with or obtain more
favorable treatment under any law or regulation or any accounting rule or
principle, it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied.
(c) Any term or provision of this Agreement may also be amended in
writing by the Issuer, the Administrator and the Indenture Trustee, with the
prior written consent of the Owner Trustee (whose consent shall not be
unreasonably withheld) and the Depositor (whose consent shall not be
unreasonably withheld), with the prior written consent of Holders of Notes
evidencing at least a majority of the Outstanding Amount of the Note Balance
and Holders of Certificates evidencing at least a majority of the Percentage
Interests in the Certificates (excluding, for purposes of this Section 11,
Notes or 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
any of the provisions of this Agreement or of modifying in any manner the
rights of the Noteholders or the Certificateholders; provided, however, that
no such amendment shall (i) reduce the percentage of the Outstanding Amount of
the Note Balance, the Holders of which are required to consent to any matter
without the consent of the Holders of at least the percentage of the
Outstanding Amount of the Note Balance that were required to consent to such
matter before giving effect to such amendment or (ii) reduce the percentage of
the interests in the Certificates, the Holders of which are required to
consent to any matter without the consent of the Holders of at least the
percentage of the interests in the Certificates that were required to consent
to such matter before giving effect to such amendment.
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It will not be necessary for the consent of Noteholders to approve the
particular form of any proposed amendment or consent, but it will be
sufficient if such consent approves the substance thereof. The manner of
obtaining such consents (and any other consents of Noteholders provided for in
this Agreement) and of evidencing the authorization of the execution thereof
by Noteholders will be subject to such reasonable requirements as the
Indenture Trustee may prescribe, including the establishment of record dates
pursuant to the Note Depository Agreement.
(d) Prior to the execution of any such amendment, the Administrator shall
provide written notification of the substance of such amendment to each Rating
Agency, the Depositor and the Owner Trustee; and promptly after the execution
of any such amendment or consent, the Administrator shall furnish a copy of
such amendment or consent to each Rating Agency, the Depositor, the Owner
Trustee and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Issuer, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The Owner Trustee and the Indenture Trustee may, but
shall not be obligated to, enter into any such amendment which adversely
affects the Owner Trustee's or the Indenture Trustee's, as applicable, own
rights, duties or immunities under this Agreement. Furthermore,
notwithstanding anything to the contrary herein, this Agreement may not be
amended in any way that would adversely affect the Owner Trustee's rights,
duties or obligations under this Agreement, the Basic Documents or otherwise
or the Administrator's duties and obligations under Section 1 of this
Agreement, without the prior written consent of the Owner Trustee, nor shall
any amendment under Section 11(b) be effective which adversely affects the
rights, protections or duties of the Indenture Trustee under this Agreement,
without the prior written consent of the Indenture Trustee.
12. 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 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 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 and represents that it has the financial
ability to satisfy its indemnification obligations hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
12
13. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS THAT
WOULD APPLY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any documents executed and
delivered in connection herewith, or for recognition and enforcement of
any judgment in respect thereof, to the nonexclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address determined in accordance with
Section 10 of this Agreement; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction.
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 unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
17. 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. Nothing in this
13
Agreement, express or implied, shall give to any other Person other than the
parties hereto and their successors hereunder any benefit or any legal or
equitable right, remedy or claim under this Agreement.
18. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, the parties hereto shall not, prior to the date that is one year
and one day after payment in full of all obligations under each Financing with
respect to each Bankruptcy Remote Party, acquiesce, petition or otherwise
invoke or cause any Bankruptcy Remote Party to invoke the process of any court
or government authority for the purpose of commencing or sustaining a case
against such Bankruptcy Remote Party under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of such Bankruptcy
Remote Party or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of such Bankruptcy Remote Party.
19. Limitation of Liability of Owner Trustee and Indenture Trustee.
Notwithstanding anything contained herein to the contrary, this Agreement has
been countersigned by Wilmington Trust Company not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event
shall Wilmington Trust Company in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer 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 in accordance with the
priorities set forth herein. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or 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. 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.
[Signature page follows.]
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
FIFTH THIRD AUTO TRUST 2004-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: Financial Services Officer
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/Xxxx Xxxxx
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
FIFTH THIRD BANK, an Ohio banking corporation,
as Administrator
By: /s/ R. Xxxxxxxxxxx Xxxxxxxx
----------------------------------------------------
Name: R. Xxxxxxxxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK }
}
COUNTY OF NEW YORK }
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for Fifth Third Auto Trust 2004-A (the "Trust"),
does hereby make, constitute and appoint Fifth Third Bank, an Ohio banking
corporation, as administrator (the "Administrator") under the Administration
Agreement dated June 1, 2004 (the "Administration Agreement"), among the
Trust, the Administrator and The Bank of New York, 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) or Section 5.06(a) 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 Administration Agreement.
EXECUTED this ____ day of ____________, 200_.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
---------------------------------------------
Name:
Title:
A-1
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 ____________
A-2
