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ADMINISTRATION AGREEMENT
by and among
ANRC AUTO OWNER TRUST 1999-A,
as Issuer,
AUTONATION FINANCIAL SERVICES CORP.,
as Administrator,
AUTONATION RECEIVABLES CORPORATION,
as Seller,
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
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Dated as of October 1, 1999
TABLE OF CONTENTS
Page
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SECTION 1. Duties of the Administrator ........................................3
SECTION 2. Records ...........................................................10
SECTION 3. Compensation ......................................................10
SECTION 4. Additional Information to be Furnished to the Issuer ..............10
SECTION 5. Independence of the Administrator .................................11
SECTION 6. No Joint Venture ..................................................11
SECTION 7. Other Activities of Administrator .................................11
SECTION 8. Term of Agreement; Resignation and Removal of Administrator .......11
SECTION 9. Action upon Termination, Resignation or Removal ..................13
SECTION 10. Notices ..........................................................13
SECTION 11. Amendments .......................................................14
SECTION 12. Successors and Assigns ...........................................15
SECTION 13. Governing Law ....................................................15
SECTION 14. Headings .........................................................15
SECTION 15. Counterparts .....................................................15
SECTION 16. Severability .....................................................15
SECTION 17. Not Applicable to AutoNation Financial Services in
Other Capacities .................................................16
SECTION 18. Limitation of Liability of Owner Trustee and Indenture
Trustee ..........................................................16
SECTION 19. Third-Party Beneficiary ..........................................16
SECTION 20. Nonpetition Covenants ............................................16
SECTION 21. Certain Matters Regarding the Insurer ............................17
i
This ADMINISTRATION AGREEMENT, dated as of October 1, 1999 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), is by and among ANRC AUTO OWNER TRUST 1999-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
October 1, 1999 (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 6.16625% Asset-Backed Notes, Class
A-1, 6.54% Asset-Backed Notes, Class A-2, 6.75% Asset-Backed Notes, Class A-3
and 6.94% 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 October 22, 1999, 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
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
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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);
(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);
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(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
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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);
(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
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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 its negligence, bad faith or
wilful 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 wilful 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
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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 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
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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) 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
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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.
(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 per formed 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
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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
(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
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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
13
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.
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:
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(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,
15
the Insurer and the Indenture Trustee within seven days after the occurrence of
such event.
(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.
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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 1999-A
c/o The Bank of New York (Delaware)
Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telecopy: (302)
(b) if to the Administrator, to:
AUTONATION FINANCIAL SERVICES CORP.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000)000-0000
(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 1999-A)
17
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, as so evidenced, upon the request of the Indenture Trustee
or the Insurer, by an Opinion of Counsel satisfactory to the Indenture Trustee
and the Insurer, materially and adversely affect the interest of any Noteholder.
This Agreement may also be amended by the parties hereto with the prior written
consent of the Owner Trustee, the Insurer and 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 (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 or (ii) reduce the aforesaid
percentage of the holders of Notes which are required to consent to any such
amendment, without the consent of the holders of all outstanding Notes.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Seller, which permission shall not be unreasonably
withheld.
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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.
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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.
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.
20
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, the Administrator,
the Indenture Trustee, the Seller or the Owner Trustee pursuant to the terms of
this Agreement, nor
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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
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 1999-A,
as Issuer
By: THE BANK OF NEW YORK
(DELAWARE), not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Agent
AUTONATION RECEIVABLES
CORPORATION, as Seller
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Treasurer
EXHIBIT A
FORM OF
POWER OF ATTORNEY
STATE OF____________ )
)
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 1999-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
October 1, 1999, 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.
A-1
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
A-2
EXECUTED this ___ day of ____________, ____
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Name:
Title:
A-3
