Exhibit 10.2
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ADMINISTRATION AGREEMENT
by and among
ANRC AUTO OWNER TRUST ___,
as Issuer,
AUTONATION FINANCIAL SERVICES CORP.,
as Administrator,
AUTONATION RECEIVABLES CORPORATION,
as Seller,
and
___________________________ ,
as Indenture Trustee
Dated as of _________, ____
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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 ________,_________ (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), is by and among ANRC AUTO OWNER TRUST _________ , a Delaware
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business trust (the "Issuer"), AUTONATION FINANCIAL SERVICES CORP. ("AutoNation
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Financial Services" or in its capacity as administrator, the "Administrator"),
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AUTONATION RECEIVABLES CORPORATION (the "Seller") and ___________, as
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Indenture Trustee (the "Indenture Trustee").
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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
____________, (as amended, supplemented or otherwise modified and in effect from
time to time, the "Owner Trust Agreement") between the Seller, as Depositor, and
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___________, as Owner Trustee (together with its successors and assigns in
such capacity, the "Owner Trustee").
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WHEREAS, the Issuer is issuing _____% Asset-Backed Notes, Class A-1,
_________% Asset-Backed Notes, Class A-2, ________% Asset-Backed Notes, Class
A-3 and____% Asset-Backed Notes, Class A-4 (collectively, the "Notes")
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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
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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;
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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
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Issuer, the Seller, AutoNation Financial Services Corp., as custodian and as
servicer (in such capacity, the "Servicer") and the Indenture Trustee, (ii) a
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Letter of Representations, dated________, _________, among the Issuer, the
Indenture Trustee, the Owner Trustee and The Depository Trust Company ("DTC")
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relating to the Notes (as amended, supplemented or otherwise modified and in
effect from time to time, the "Depository Agreement"), (iii) the Owner Trust
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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
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Agreements");
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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")
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and (ii) the
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beneficial ownership interest in the Issuer (the holder of such interest being
referred to herein as the "Depositor");
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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.
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(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
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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 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
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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
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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
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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
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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 $ _________ which shall be solely an obligation of
the Servicer.
SECTION 4. Additional Information to be Furnished to the Issuer. The
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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
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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)
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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
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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
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Administrator. This Agreement shall continue in force until the dissolution of
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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.
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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
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hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
ANRC AUTO OWNER TRUST____
c/o______________________
Attention: _____________
Telecopy: _____________
(b) if to the Administrator, to:
AUTONATION FINANCIAL SERVICES CORP.
Attention:_____________
Telecopy: _____________
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(c) if to the Indenture Trustee, to:
_________________________
Attention: ______________
Telecopy: ______________
(d) if to the Insurer, to:
_________________________
Attention:______________
Telecopy: ______________
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
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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
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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
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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
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
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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
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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
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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
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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
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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
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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
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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
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Trustee.
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(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by , not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuer, and in no event shall 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 , as Indenture Trustee and in no event shall
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
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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.
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(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
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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
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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
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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______,
as Issuer
By:_______, not in its individual capacity but solely
as Owner Trustee
By:_________________
Name:
Title:
AUTONATION RECEIVABLES
CORPORATION, as Seller
By:_________________
Name:
Title:
________________________,
as Indenture Trustee
By:_________________
Name:
Title:
AUTONATION FINANCIAL
SERVICES CORP., as Administrator
By:_________________
Name:
Title:
15
EXHIBIT A
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FORM OF
POWER OF ATTORNEY
STATE OF___________)
) ss.:
COUNTY OF__________)
KNOW ALL MEN BY THESE PRESENTS, that_______, a_____banking____________
corporation, not in its individual capacity but solely as owner trustee ("Owner
-----
Trustee") for the ANRC Auto Owner Trust______(the "Trust"), does hereby make,
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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
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the Administration Agreement, dated as of______,___, by and among the Trust,
AutoNation Financial Services Corp., as Administrator, AutoNation Receivables
Corporation, as Seller, and _________, 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.
EXECUTED this ___ day of ____________, ____.
__________________________________,
not in its individual capacity but
solely as Owner Trustee
By:_____________________________
Name:
Title:
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