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Exhibit 10.3
EXECUTION COPY
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ADMINISTRATION AGREEMENT
by and among
AMSOUTH AUTO TRUST 2000-1
as Issuer
AMSOUTH BANK
as Administrator
and
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of October 1, 2000
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TABLE OF CONTENTS
<TABLE>
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Page
<S> <C> <C>
1. Definitions and Usage................................................. 3
2. Duties of the Administrator........................................... 4
3. Records.............................................................. 11
4. Compensation......................................................... 11
5. Additional Information To Be Furnished to the Issuer................. 11
6. Independence of the Administrator.................................... 11
7. No Joint Venture..................................................... 12
8. Other Activities of Administrator.................................... 12
9. Term of Agreement; Resignation and Removal of Administrator.......... 12
10. Action upon Termination, Resignation or Removal...................... 13
11. Notices.............................................................. 13
12. Amendments........................................................... 14
13. Successors and Assigns............................................... 15
14. Governing Law........................................................ 15
15. Headings............................................................. 15
16. Counterparts......................................................... 15
17. Severability......................................................... 15
18. Not Applicable to AmSouth Bank in Other Capacities................... 16
19. Limitation of Liability of Owner Trustee and Indenture Trustee....... 16
20. Third-Party Beneficiary.............................................. 16
21. Nonpetition Covenants................................................ 16
</TABLE>
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 1, 2000 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among AMSOUTH AUTO TRUST 2000-1, a New York common law
trust (the "Issuer"), AMSOUTH BANK, a banking corporation organized under the
laws of the State of Alabama, as administrator (the "Administrator"), and THE
BANK OF NEW YORK TRUST COMPANY OF FLORIDA, NATIONAL ASSOCIATION, a national
banking association, 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 Note Depository Agreement, and (iii) the Indenture (the Sale
and Servicing Agreement, the Note Depository Agreement and the Indenture being
referred to hereinafter collectively as the "Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain duties of the Issuer and the Owner 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 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 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: (i)
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; (ii) 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; (iii) the words "hereof," "herein" and "hereunder"
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and words of similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement; (iv) 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; (v) the
term "including" means "including without limitation"; (vi) 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; (vii) references to any Person
include that Person's successors and assigns; and (viii) 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 Note Depository
Agreement.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Note Depository Agreement.
In addition, the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer under the Indenture and the Note Depository Agreement.
(ii) 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 Note Depository Agreement.
(iii) 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 Note
Depository Agreement.
(iv) 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):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.4);
(B) 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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(C) 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);
(D) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
(E) 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);
(F) the duty to cause newly appointed Note Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(G) the direction to the Indenture Trustee to deposit monies with
Note Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(H) 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);
(I) 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);
(J) 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);
(K) 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));
(L) 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));
(M) the preparation and obtaining of documents and instruments
required for the transfer by the Issuer of its properties or assets
(Section 3.10(b));
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(N) 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);
(O) 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);
(P) 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);
(Q) 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);
(R) 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);
(S) 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);
(T) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(U) 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);
(V) 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);
(W) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the Indenture
Trustee of documents
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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);
(X) 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);
(Y) 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);
(Z) 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);
(AA) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(BB) the notification of Noteholders of redemption of the Notes
or duty to cause the Indenture Trustee to provide such notification
(Section 10.2);
(CC) 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));
(DD) 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));
(EE) 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);
(FF) 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
(GG) the recording of the Indenture, if applicable (Section
11.15).
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(v) Payment of Fees and Indemnification by the Administrator.
The Administrator will:
(A) 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 October 1, 2000;
(B) The Administrator agrees to pay to each agent of the
Indenture Trustee from time to time reasonable compensation for its
services as agreed upon between such agent and the Administrative Agent.
(C) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of such agents and
counsel as Indenture Trustee may employee in connection with the exercise
and performance of its rights and its duties under the Indenture), except
any such expense, disbursement or advance as may be attributable to its
willful misconduct, negligence or bad faith;
(D) 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 acceptance or the administration of the trust created under the
Indenture and the performance of its duties thereunder; 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;
(E) 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 the letter agreement between Administrator and Owner Trustee
dated October 19, 2000;
(F) except as otherwise expressly provided for in the Trust
Agreement, reimburse Owner Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by Owner Trustee in
accordance with any provision of the Trust Agreement (including the
reasonable compensation, expenses and disbursements of
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such agents and counsel as Owner Trustee may employee in connection with
the exercise and performance of its rights and its duties under the Trust
Agreement), except any such expense may be attributable to its willful
misconduct, negligence or bad faith.
(G) 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 Trust Agreement, the Basic Documents, the Owner Trust Estate, 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.
Indemnification under this subsection shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination
of this Agreement or any other Basic Document. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to this Section, such Person (the
"Indemnified Person") shall promptly notify Administrator in writing, and
Administrator, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others Administrator designates in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. Administrator shall not be liable for any
settlement of any claim or proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, Administrator agrees to indemnify any Indemnified Person from
and against any loss or liability by reason of such settlement or judgment.
Administrator shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding. If Administrator shall have made any indemnity payments
pursuant to this subsection and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from others,
such Person shall promptly repay such amounts to Administrator, without
interest.
(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
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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:
(i) 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.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trust or the Owner Trustee set forth in
Sections 5.5(a), (b), (c), (d) and (e), 5.6(a) and 9.1 of the Trust Agreement
and Sections 4.4(b), 4.7, 5.1(c) and 8.4 of the Sale and Servicing Agreement,
with respect to, among other things, accounting and reports to
Certificateholders.
(ii) The Administrator will provide prior to November 15, 2000, a
certificate of an Authorized Officer in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Administrator 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.
(iv) 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.
(v) 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. 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
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or provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Receivables or
Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor Note
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, Note Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
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.
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 $2,500 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
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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.
(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:
(i) 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);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within 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
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(iii) 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
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:
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AmSouth Auto Trust 2000-1
c/o The Chase Manhattan Bank
450 West 33/rd/ Street, 14/th/ Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services - Group Structured
Finance
Telephone: (212) 946-3676
Facsimile: (212) 946-8302
(b) if to the Administrator, to:
AmSouth Bank
1900 5th Avenue North
AmSouth/SONAT Tower
Birmingham, Alabama 35203
Attention: David Parks
Telephone: (205) 581-7403
Facsimile: (205) 326-4072
(c) If to the Indenture Trustee, to:
The Bank of New York Trust
Company of Florida, National Association
c/o The Bank of New York
101 Barclay Street, 12E
New York, NY 10286
Attention: Mauro Palladino
Telephone: (212) 815-5766
Facsimile: (212) 815-5544
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 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
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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 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 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 or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
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18. Not Applicable to AmSouth Bank in Other Capacities. Nothing in this
Agreement shall affect any right or obligation AmSouth Bank 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 The Chase Manhattan Bank not in its individual capacity
but solely in the capacity as Owner Trustee of the Issuer and in no event shall
The Chase Manhattan Bank 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 Bank of New York Trust Company of
Florida, National Association not in its individual capacity but solely as
Indenture Trustee and in no event shall 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. 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.
(b) 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, 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
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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.
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Patricia M. Russo
-------------------------------------------
Name: Patricia M. Russo
Title: Vice President
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA,
NATIONAL ASSOCIATION not in its individual
capacity but solely as Indenture Trustee
By: /s/ Eileen Barat
-------------------------------------------
Name: Eileen Barat
Title: Vice President
AMSOUTH BANK, as Administrator
By: /s/ R. Mark Graf
-------------------------------------------
Name: R. Mark Graf
Title: Senior Vice President
2000-1 Administration Agreement
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