EXHIBIT 10.6
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ADMINISTRATION AGREEMENT
by and among
ANRC AUTO OWNER TRUST 2000-A,
as Issuer,
AUTONATION FINANCIAL SERVICES CORP.,
as Administrator,
AUTONATION RECEIVABLES CORPORATION,
as Seller,
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of August 10, 2000
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TABLE OF CONTENTS
PAGE
SECTION 1. Duties of the Administrator..........................................................2
SECTION 2. Records..............................................................................8
SECTION 3. Compensation.........................................................................8
SECTION 4. Additional Information to be Furnished to the Issuer.................................8
SECTION 5. Independence of the Administrator....................................................8
SECTION 6. No Joint Venture.....................................................................9
SECTION 7. Other Activities of Administrator....................................................9
SECTION 8. Term of Agreement; Resignation and Removal of Administrator..........................9
SECTION 9. Action upon Termination,Resignation or Removal......................................10
SECTION 10. Notices.............................................................................10
SECTION 11. Amendments..........................................................................11
SECTION 12. Successors and Assigns..............................................................12
SECTION 13. Governing Law.......................................................................12
SECTION 14. Headings............................................................................12
SECTION 15. Counterparts........................................................................12
SECTION 16. Severability........................................................................13
SECTION 17. Not Applicable to AutoNation Financial Services in Other Capacities.................13
SECTION 18. Limitation of Liability of Owner Trustee and Indenture Trustee......................13
SECTION 19. Third-Party Beneficiary.............................................................13
SECTION 20. Nonpetition Covenants...............................................................13
SECTION 21. Certain Matters Regarding the Insurer...............................................14
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This ADMINISTRATION AGREEMENT, dated as of August 10, 2000 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), is by and among ANRC AUTO OWNER TRUST 2000-A, a Delaware
business trust (the "Issuer"), AUTONATION FINANCIAL SERVICES CORP. ("AutoNation
Financial Services" or in its capacity as administrator, the "Administrator"),
AUTONATION RECEIVABLES CORPORATION (the "Seller") and THE CHASE MANHATTAN BANK,
as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Issuer is a business trust under the Delaware
Business Trust Act created by an amended and restated owner trust agreement
dated as of August 10, 2000 (as amended, supplemented or otherwise modified and
in effect from time to time, the "Owner Trust Agreement") between the Seller, as
Depositor, and The Bank of New York (Delaware), as Owner Trustee (together with
its successors and assigns in such capacity, the "Owner Trustee").
WHEREAS, the Issuer is issuing 6.72462% Asset-Backed Notes,
Class A-1, 7.00% Asset-Backed Notes, Class A-2, 7.06% Asset-Backed Notes, Class
A-3 and 7.15% Asset-Backed Notes, Class A-4 (collectively, the "Notes") pursuant
to an Indenture, dated as of the date hereof (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and the Indenture Trustee (capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in, or incorporated
by reference into, the Indenture);
WHEREAS, the Issuer is issuing Residual Interest Certificates
(the "Residual Interest Certificates") pursuant to the Owner Trust Agreement;
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes including (i) the sale and servicing
agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified and in effect from time to time, the "Sale and Servicing Agreement"),
between the Issuer, the Seller, AutoNation Financial Services Corp., as
custodian and as servicer (in such capacity, the "Servicer") and the Indenture
Trustee, (ii) a Letter of Representations, dated August 10, 2000, among the
Issuer, the Indenture Trustee, the Owner Trustee and The Depository Trust
Company ("DTC") relating to the Notes (as amended, supplemented or otherwise
modified and in effect from time to time, the "Depository Agreement"), (iii) the
Owner Trust Agreement, (iv) the Insurance Agreement (as defined in the Sale and
Servicing Agreement) and (v) the Indenture (the Sale and Servicing Agreement,
the Depository Agreement, the Owner Trust Agreement, the Insurance Agreement and
the Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and
the Owner Trustee are required to perform certain duties in connection with (i)
the Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (ii) the beneficial ownership interest in the Issuer (the
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holder of such interest being referred to herein as the "Depositor");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the 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 are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 Duties of the Administrator.
(a) Duties with Respect to the Related Agreements and the
Indenture.
(i) The Administrator agrees to perform all its
duties as Administrator and the duties of the Issuer and the
Owner Trustee under the Depository Agreement. In addition, the
Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the
Related Agreements. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the respective duties
of the Issuer and the Owner Trustee under the Related
Agreements. 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 Related Agreements. In furtherance of
the foregoing, the Administrator shall take all appropriate
action that the Issuer or the Owner Trustee is required 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 preparation of or obtaining of the documents
and instruments required for execution and authentication of
the Notes and delivery of the same to the Indenture Trustee
(Section 2.02);
(B) the duty to cause the Note Register to be kept
and to give the Indenture Trustee and the Insurer notice of
any appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
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(C) the duty to cause the replacement of lost or
mutilated Notes upon the request of the Issuer (Section 2.05);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(E) 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);
(F) the direction to the Paying Agent to deposit
monies with the Indenture Trustee (Section 3.03);
(G) 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 and
the Collateral (Section 3.04);
(H) 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 Collateral (Section
3.05);
(I) the delivery of the Opinion of Counsel on the
Closing Date as to the Collateral, and the annual delivery of
the Officer's Certificate and certain other statements as to
compliance with the Indenture (Sections 3.06 and 3.09);
(J) the identification to the Indenture Trustee and
the Insurer 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));
(K) the notification of the Indenture Trustee, the
Insurer and each Rating Agency of a Servicer Default under the
Sale and Servicing Agreement and, if such Servicer Default
arises from the failure of the Servicer to perform any of its
duties or obligations under the Sale and Servicing Agreement
with respect to the Contracts, the taking of all reasonable
steps available to remedy such failure (Section 3.07(d));
(L) the duty to cause the Servicer to comply with the
Servicer's obligations under the Sale and Servicing Agreement
(Section 3.13);
(M) the delivery of written notice to the Indenture
Trustee, Owner Trustee, the Insurer and each Rating Agency of
each Event of Default under the Indenture and each default by
the Servicer or the Seller under the Sale and Servicing
Agreement (Section 3.15);
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(N) 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);
(O) the compliance with any written directive of the
Indenture Trustee or the Insurer, as the case may be, with
respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred
and be continuing (Section 5.04);
(P) the preparation of any written instruments
required to give effect to the authority of any co-trustee or
separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.08
and 6.10);
(Q) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of documents required to be
filed on a periodic basis with, and summaries thereof as may
be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(R) 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 8.03(b) and 8.04);
(S) 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);
(T) arranging for the execution and delivery of new
Notes conforming to any supplemental indenture (Section 9.06);
(U) the duty to notify Noteholders, the Insurer and
the Rating Agencies of redemption of the Notes or to cause the
Indenture Trustee to provide such notification (Section
10.02);
(V) 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));
(W) 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));
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(X) the notification of the Rating Agencies and the
Insurer, upon the failure of the Issuer or the Indenture
Trustee to give such notification, of the information required
pursuant to Section 11.04 of the Indenture (Section 11.04);
and
(Y) the preparation and delivery to the Indenture
Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.06).
(ii) 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);
(B) 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 its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to the Indenture Trustee's negligence, bad
faith or willful misconduct;
(C) indemnify the Indenture Trustee and its agents
for, and hold them harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful
misconduct on their part, arising out of or in connection with
the acceptance or administration of the transactions
contemplated by the Indenture, including the reasonable costs
and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of
any of their powers or duties under the Indenture; and
(D) to the extent not paid by the Depositor,
indemnify the Owner Trustee and its agents for, and hold them
harmless against, any loss, liability or expense incurred
without willful misconduct or negligence on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Owner
Trust Agreement, including the reasonable costs and expenses
of defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Owner Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties set forth in Section I
(a)(i), the Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other
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appropriate persons of, and shall execute on behalf of the
Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that it shall
be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Related Agreements, and at the
request of the Owner Trustee shall take all appropriate action
that the Issuer or the Owner Trustee is required 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 forms of Exhibits
A and B 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
in the event that any withholding tax is imposed on the
Trust's payments (or allocations of income) to the Depositor
as contemplated in Section 5.02(c) of the Owner 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.
(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), (c) and (d) and
Section 5.06(a) of the Owner Trust Agreement with respect to,
among other things, accounting and reports to the Depositor.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Administrator will
make generally available to the Noteholders an earnings
statement of the Trust covering a period of at least 12 months
beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Securities Act. For the
purpose of the preceding sentence, "Availability Date" means
the 90th day after the end of the Trust's fourth fiscal
quarter following the fiscal quarter that includes such
Effective Date.
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(v) The Administrator shall provide written notice to
the Indenture Trustee upon notification to the Administrator
that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as described in the
Depository Agreement. Upon the receipt of such notification
from the Clearing Agency, the Administrator shall use
reasonable efforts to locate and appoint a qualified successor
Clearing Agency.
(vi) The Administrator shall have the duties of the
Administrator specified in Section 10.02 of the Owner 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
under the Owner Trust Agreement.
(vii) 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 that the terms of any such transactions
or dealings shall be in accordance with any directions
received from the Issuer or the Insurer 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) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless authorized
pursuant to the Basic Documents and within a reasonable time
before the taking of such action, the Administrator shall have
notified the Owner Trustee and the Insurer of the proposed
action and the Owner Trustee and the Insurer shall not have
unreasonably withheld consent or shall not have 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 Contracts);
(C) the amendment, change or modification of the
Related Agreements;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of a successor
Administrator or a Successor Servicer, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
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(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 (A) make any payments to the Noteholders under the
Related Agreements, (B) sell the Collateral pursuant to clause
(iv) of Section 5.04(a) of the Indenture, (C) take any other
action that the Issuer directs the Administrator not to take
on its behalf or (D) take any other action which may be
construed as having the effect of varying the investment of
the Holders.
SECTION 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
by the Issuer, the Indenture Trustee and the Insurer at any time during normal
business hours.
SECTION 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 entitled to an annual
payment of compensation of $1,000 which shall be solely an obligation of the
Servicer.
SECTION 4. Additional Information to be Furnished to the
Issuer. The Administrator shall furnish to the Issuer, the Indenture Trustee and
the Insurer from time to time such additional information regarding the
Collateral as the Issuer, the Indenture Trustee or the Insurer shall reasonably
request.
SECTION 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.
SECTION 6. No Joint Venture. Nothing contained in this
Agreement (i) shall constitute the Administrator and any of the Issuer, the
Owner Trustee or the Indenture 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.
SECTION 7. 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.
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SECTION 8. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Sections 8(d) and 8(e), the Administrator may
resign its duties hereunder by providing the Issuer, the Indenture Trustee and
the Insurer with at least 60 days' prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuer, with the
prior written consent of the Insurer may, and shall at the direction of the
Insurer, remove the Administrator without cause by providing the Administrator
with at least 60 days' prior written notice.
(c) Subject to Sections 8(d) and 8(e), at the sole option of
the Issuer, the Administrator may, with the prior written consent of the
Insurer, and shall at the direction of the Insurer, be removed immediately upon
written notice of termination from the Issuer to the Administrator and the
Insurer 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 30 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 and the
Insurer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or
order shall not have been vacated within 60 days, in respect
of the 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
(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, or 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 (ii) or (iii) above shall occur, it shall give written notice thereof
to the Issuer, the Insurer and the Indenture Trustee within seven days after the
occurrence of such event.
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(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator acceptable
to the Insurer and the Indenture Trustee shall have been appointed by the Issuer
with the consent of the Insurer and the Indenture Trustee and (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.
(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
SECTION 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
the first sentence of Section 8 or the resignation or removal of the
Administrator pursuant to Section 8(a), (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 the first
sentence of Section 8 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(a), (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. The Administrator's payment
and indemnification obligations pursuant to this Agreement which arose as a
result of Administrator's actions while acting as Administrator shall survive
the termination of this Agreement and the resignation and removal of the
Administrator.
SECTION 10. 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:
ANRC AUTO OWNER TRUST 2000-A
c/o The Bank of New York (Delaware)
Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
(b) if to the Administrator, to:
AUTONATION FINANCIAL SERVICES CORP.
000 Xxxxx Xxxx 0xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
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(c) if to the Indenture Trustee, to:
THE CHASE MANHATTAN BANK 000 Xxxx 00xx Xxxxxx 00xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Capital Markets Funding Services
Telecopy: (000) 000-0000
(d) if to the Insurer, to:
MBIA INSURANCE CORPORATION
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management -
Structured Finance
(ANRC Auto Owner Trust 2000-A)
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.
SECTION 11. Amendments. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by the parties
hereto, with the prior written consent of the Insurer and the Owner Trustee, but
without the consent of the Noteholders, 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; provided
that such amendment will not materially and adversely affect the interest of any
Noteholder. Any amendment shall be deemed not to materially and adversely affect
the interests of any Noteholder if the Person requesting the amendment obtains
(i) a letter from each Rating Agency to the effect that such amendment would not
result in a downgrading or withdrawal of the ratings then assigned to the Notes
by such Rating Agency, without regard to the Insurance Policy, and (ii) the
consent of the Insurer. This Agreement may also be amended by the parties hereto
with the prior written consent of the Owner Trustee, the Insurer and, so long as
an Insurer Default has occurred and is continuing, the holders of Notes
evidencing at least a majority of the Outstanding Principal Amount of the Notes
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; provided, further, that no such amendment may
without the consent of each Noteholder (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on the
Contracts or distributions that are required to be made for the benefit of the
Noteholders, (ii) reduce the aforesaid percentage of the Holders of Notes which
are required to consent to any such amendment or (iii) result in a taxable event
to any of the Noteholders for federal income tax purposes or result in the Trust
being classified as an association or a publicly traded partnership taxable as a
corporation for federal income tax purposes. Notwithstanding the foregoing, the
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Administrator may not amend this Agreement without the permission of the Seller,
which permission shall not be unreasonably withheld.
SECTION 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, the Owner Trustee, the Insurer 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
Insurer, the Indenture Trustee 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 each Rating Agency shall have
notified the Seller, the Servicer, the Insurer and the Issuer in writing that
such action will not result in a qualification, reduction or withdrawal of its
then-current rating of any Class of Notes (without regard to the Insurance
Policy) and such successor organization executes and delivers to the Issuer, the
Insurer, the Owner Trustee and the Indenture Trustee an agreement, in form and
substance reasonably satisfactory to the Issuer, the Owner Trustee, the
Indenture Trustee and the Insurer, 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.
SECTION 13. Governing Law. This Agreement shall, in accordance
with Section 5-1401 of the General Obligations Law of the State of New York, be
governed by, and construed in accordance with, the laws of the State of New York
without regard to conflict of law provisions thereof.
SECTION 14. Headings. The section and subsection 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 15. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
SECTION 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.
SECTION 17. Not Applicable to AutoNation Financial Services in
Other Capacities. Nothing in this Agreement shall affect any obligation
AutoNation Financial Services Corp. may have in any other capacity.
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SECTION 18. Limitation of Liability of Owner Trustee and
Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by The Bank of New York (Delaware), not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer, and in no event shall The Bank of New York (Delaware) 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 Owner Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by The Chase Manhattan Bank, as Indenture
Trustee and in no event shall The Chase Manhattan Bank have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
SECTION 19. Third-Party Beneficiary. The Owner Trustee and the
Insurer 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.
SECTION 20. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement,
each party hereto shall not, at any time, acquiesce, petition 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,
each party hereto shall not, at any time, acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 21. Certain Matters Regarding the Insurer.
Notwithstanding any provision in this Agreement to the contrary, in the event an
Insurer Default (as defined in the Sale and Servicing Agreement) shall have
occurred and be continuing, the Insurer shall not have the right to take any
action under this Agreement or to control or direct the actions of the Issuer,
13
the Administrator, the Indenture Trustee, the Seller or the Owner Trustee
pursuant to the terms of this Agreement, nor shall the consent of the Insurer be
required with respect to any action (or waiver of right to take action) to be
taken by the Issuer, the Administrator, the Indenture Trustee, the Seller, the
Owner Trustee or the Holders of the Notes; provided that the consent of the
Insurer shall be required at all times (which consent, so long as an Insurer
Default has occurred and is continuing, shall not be unreasonably withheld) with
respect to any amendment of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Administration Agreement to be duly executed and delivered as of the day and
year first above written.
ANRC AUTO OWNER TRUST 2000-A,
as Issuer
By: THE BANK OF NEW YORK
(DELAWARE), not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
AUTONATION RECEIVABLES
CORPORATION, as Seller
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Assistant Vice President
AUTONATION FINANCIAL
SERVICES CORP., as Administrator
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
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EXHIBIT A
---------
FORM OF
POWER OF ATTORNEY
STATE OF )
--------------------------
) ss.:
COUNTY OF )
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that THE BANK OF NEW YORK
(DELAWARE), a Delaware banking corporation, not in its individual capacity but
solely as owner trustee ("Owner Trustee") for the ANRC Auto Owner Trust 2000-A
(the "Trust"), does hereby make, constitute, and appoint AUTONATION FINANCIAL
SERVICES CORP. as Administrator under the Administration Agreement (as defined
below), 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 shall be the duty of the Owner
Trustee or the Trust to prepare, file or deliver pursuant to the Related
Agreements (as defined in the Administration 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 restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Administration Agreement" means the Administration
Agreement, dated as of August 10, 2000, by and among the Trust, AutoNation
Financial Services Corp., as Administrator, AutoNation Receivables Corporation,
as Seller, and The Chase Manhattan Bank, as Indenture Trustee, as such may be
amended, supplemented or otherwise modified and in effect from time to time.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
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EXECUTED this ___ day of ____________, ____.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------------
Name:
Title:
17
