Exhibit 2
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT, dated as of June 30, 1999 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and between NationsBank, N.A., as trustee of Xxxxxx Trust
(the "Trustee"), and U.S. Bank National Association, as administrative agent
(the "Administrative Agent").
WHEREAS, the Trustee is a party to the Trust Indenture and Agreement dated
as of June 30, 1999 between Xxxxxx, Inc. as Depositor, and NationsBank, N.A., as
Trustee (the "Trust Agreement");
WHEREAS, the Trustee desires to have the Administrative Agent perform
certain duties of the Trustee under the Trust Agreement and to provide such
additional services consistent with the terms of this Agreement and the Trust
Agreement as the Trustee may from time to time request; and
WHEREAS, the Administrative Agent has the capacity to provide the services
required hereby and is willing to perform such services for the 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:
Section 1. DEFINITIONS AND USAGE. Except as otherwise specified herein or
as the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in the Trust Agreement, which also contain rules as
to usage that shall be applicable herein.
Section 2. DUTIES OF THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall take such actions as are required to be
taken by the Trustee with respect to the following matters under the Trust
Agreement (references are to sections of the Trust Agreement):
(i) obtain the pricing of the Notes and the Class B Certificates,
calculating the market value of the Notes and Class B Certificates on the
basis of such pricing and furnishing such information (showing the
calculations therefor in reasonable detail) to the Trustee (Section 4.01);
(ii) the holding of the Securities in the Trust as custodian
(Section 2.01);
(iii) the holding of the Interest Account and the Principal Account
and the investment of funds therein in interim investments (Sections 3.02
and 3.03);
(iv) the furnishing of prompt written notice to the Depositor of all
amounts credited to or withdrawn from the Principal Account and the
balance in such account after giving effect to such credit or withdrawal
(Section 3.03);
(v) the making of distributions to the Registrar and Paying Agent
(Section 3.04); and
(vi) the calculation of the amount to be distributed from the
Interest Account and the Principal Account per Unit of the Trust, and the
furnishing of such information to the Registrar and Paying Agent (Section
3.05).
(b) The Administrative Agent, as co-paying agent with the Registrar and
Paying Agent, shall retain, with respect to distributions pursuant to Section
3.04 of the Trust Agreement, the portion thereof due to Xxxxxx, Inc. and pay
such amounts directly to Xxxxxx, Inc. on the applicable Distribution Date.
Amounts distributed to Xxxxxx, Inc. shall be paid by wire transfer to the
following account:
Xxxxxx Inc.
DDA account number 000659795264
ABA number 000000000
Bank NationsBank, N.A.
City Charlotte
State North Carolina
or such other account identified in a notice from the Trustee to the
Administrative Agent. The contact person at the Registrar and Paying agent
is
Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
or such other person identified by the Trustee in a notice to the
Administrative Agent.
(c) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrative Agent 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 Trustee and shall be, in the Administrative Agent's opinion,
as applicable, no less favorable to the Trust than would be available from
unaffiliated parties.
Section 3. DUTY OF TRUSTEE, FEE. The Trustee hereby informs the
Administrative Agent that the initial number of Units is 9,000,000, of which
9,000,000 are owned by Xxxxxx Inc. The Trustee shall promptly inform the
Administrative Agent of any decrease in the number of Units and the number of
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Units owned by Xxxxxx Inc. The Trustee will pay the Administrative Agent the fee
set forth in a separate side letter.
Section 4. RECORDS. The Administrative Agent 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 Trustee
and any Unitholder at any time during normal business hours.
Section 5. PROTECTIONS OF ADMINISTRATIVE AGENT. With respect to its
duties hereunder, the Administrative Agent shall be entitled to the same
protections afforded the Indenture Trustee under the Indenture dated as of June
1, 1999 between Bank of America Auto Owner Trust 1999-A and U.S. Bank National
Association, as Indenture Trustee.
Section 6. ADDITIONAL INFORMATION TO BE FURNISHED TO THE TRUSTEE. The
Administrative Agent shall furnish to the Trustee from time to time such
additional information regarding the assets of the Trust and within the
Administrative Agent's knowledge as the Trustee shall reasonably request.
Section 7. INDEPENDENCE OF THE ADMINISTRATIVE AGENT. For all purposes of
this Agreement, the Administrative Agent shall be an independent contractor and
shall not be subject to the supervision of the Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Trustee, the Administrative Agent shall have
no authority to act for or represent the Trust or the Trustee in any way and
shall not otherwise be deemed an agent of the Trust or the Trustee.
Section 8. NO JOINT VENTURE. Nothing contained in this Agreement, with
respect to the Administrative Agent, the Trust or the Trustee (i) shall confer
on any of them status 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.
Section 9. OTHER ACTIVITIES OF ADMINISTRATIVE AGENT. Nothing herein shall
prevent any of the Administrative Agent or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
Administrative Agent for any other person or entity even though such person or
entity may engage in business activities similar to those of the Trust or the
Trustee.
Section 10. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATIVE
AGENT.
(a) This Agreement shall continue in force until the dissolution of the
Trust, upon which event this Agreement shall automatically terminate.
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(b) Subject to paragraph (e) of this Section 10, the Administrative Agent
may resign its duties hereunder by providing the Trustee with at least sixty
(60) days' prior written notice. If a successor Administrative Agent does not
take office within sixty (60) days after the retiring Administrative Agent
resigns or is removed, the retiring Administrative Agent may petition any court
of competent jurisdiction for the appointment of a successor Administrative
Agent.
(c) Subject to paragraph (e) of this Section 10, the Trustee may remove
the Administrative Agent without cause by providing the Administrative Agent
with at least sixty (60) days' prior written notice.
(d) Subject to paragraph (e) of this Section 10, at the sole option of the
Trustee, the Administrative Agent may be removed immediately upon written notice
of termination from the Trustee to the Administrative Agent if any of the
following events shall occur:
(i) the Administrative Agent shall default in the performance of any
of its duties under this Agreement and, after receiving 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
Trustee);
(ii) the entry of a decree or order by a court or agency or
supervisory authority of competent jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee for the Administrative Agent
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities, or similar proceedings, or for the winding up or
liquidation of its affairs, and any such decree or order continues
unstayed and in effect for a period of sixty (60) consecutive days; or
(iii) the consent by the Administrative Agent to the appointment of
a conservator, receiver, liquidator or trustee or similar official in any
insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Administrative Agent or
relating to substantially all of its property, the admission in writing by
the Administrative Agent of its inability to pay its debts generally as
they become due, the filing by the Administrative Agent of a petition to
take advantage of any applicable insolvency or reorganization statute, the
making by the Administrative Agent of an assignment for the benefit of its
creditors or the voluntary suspension by the Administrative Agent of
payment of its obligations.
The Administrative Agent agrees that if any of the events specified in
clause (ii) or (iii) of this Section 9(d) shall occur, it shall give written
notice thereof to the Trustee within seven (7) days after the happening of such
event.
(e) No resignation or removal of the Administrative Agent pursuant to this
Section 10 shall be effective until (i) a successor Administrative Agent shall
have been appointed by the Trustee and (ii) such successor Administrative Agent
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shall have agreed in writing to be bound by the terms of this Agreement in the
same manner as the Administrative Agent is bound hereunder.
Section 11. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 10(a) or
the resignation or removal of the Administrative Agent pursuant to Section 10(b)
or 10(c), respectively, the Administrative Agent shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrative Agent shall forthwith
upon such termination pursuant to Section 10(a) deliver to the Trustee all
property and documents of or relating to the Trust then in the custody of the
Administrative Agent (including, without limitation, the Securities). In the
event of the resignation or removal of the Administrative Agent pursuant to
Section 10(b) or 10(c), respectively, the Administrative Agent shall cooperate
with the Trustee and take all reasonable steps requested to assist the Trustee
in making an orderly transfer of the duties of the Administrative Agent.
Section 12. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) If to the Trustee, to:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to the Administrative Agent, to:
U.S. Bank National Association
000 X. 0xx Xxxxxx
XXXX 0000
Xx. Xxxx, XX 00000
Attention: Xxxxxx Trust
Telephone: (000) 000-0000
Telecopy: (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.
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Section 13. AMENDMENTS. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the parties hereto; provided,
that such amendment will not materially and adversely affect the interests of
any Unitholder.
Section 14. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrative Agent unless such assignment is previously consented to in
writing by the Trustee. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the assignee hereunder in the same manner
as the Administrative Agent is bound hereunder. Notwithstanding the foregoing,
this Agreement may be assigned by the Administrative Agent without the consent
of the Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrative Agent;
provided that such successor organization executes and delivers to the 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
Administrative Agent is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
Section 15. 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.
Section 16. HEADINGS. The Section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
Section 18. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 19. NOT APPLICABLE TO NATIONSBANK, N.A. IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any right or obligation NationsBank,
N.A. may have in any other capacity.
Section 20. LIMITATION OF LIABILITY OF TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by NationsBank, N.A. not in its individual capacity but
solely in its capacity as Trustee of the Trust and in no event shall
NationsBank, N.A. in its individual capacity or any Unitholder have any
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liability for the representations, warranties, covenants, agreements or other
obligations of the Trustee hereunder, as to all of which recourse shall be had
solely to the assets of the Trust.
Section 21. NONPETITION COVENANTS. Notwithstanding any prior termination
of this Agreement, the Administrative Agent and the Trustee shall not, prior to
the date which is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against the Trust 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 Trust or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust.
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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.
NATIONSBANK, N.A.,
not in its individual capacity but solely
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Xxx Xxxxxx
---------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
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