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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
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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..............9
SECTION 5. Independence of the Administrator.................................9
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..................11
SECTION 10. Notices..........................................................11
SECTION 11. Amendments.......................................................12
SECTION 12. Successors and Assigns...........................................13
SECTION 13. Governing Law....................................................13
SECTION 14. Headings.........................................................13
SECTION 15. Counterparts.....................................................13
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..........................................14
SECTION 20. Nonpetition Covenants............................................14
SECTION 21. Certain Matters Regarding the Insurer............................15
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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
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 ___________, not in its
individual capacity but solely 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 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 ______,
as Owner Trustee (together with its successors and assigns in such capacity, the
"Owner Trustee").
WHEREAS, the Issuer is issuing ___ % Auto Loan Backed Notes, Class
X- 0, ___% Auto Loan Backed Notes, Class A-2, ___% Auto Loan Backed Notes, Class
A-3 and ___% Auto Loan 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 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 servicer
(in such capacity, the "Servicer") and the Indenture Trustee, (ii) a Letter of
Representations, dated ________, ____, 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 and (iv) the
Indenture (the Sale and Servicing Agreement, the Depository Agreement, the Trust
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 Depositor 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):
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(A) the fixing or causing to be fixed of any special record
date and the notification of the Indenture Trustee with respect to
special payment dates, if any (Section 2.07);
(B) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of Collateral (Section 2.12);
(C) 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);
(D) the direction to the Indenture Trustee to deposit monies
with the Paying Agent, if any, other than the Indenture Trustee
(Section 3.03);
(E) 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);
(F) 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);
(G) 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);
(H) 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));
(I) 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));
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(J) the duty to cause the Servicer to comply with the
Servicer's obligations under the Sale and Servicing Agreement
(Section 3.13);
(K) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(L) 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);
(M) 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);
(N) 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);
(O) 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);
(P) 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);
(Q) the opening of one or more accounts in the Issuer's name,
the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds in
the Trust Accounts (Section 8.02);
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(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 (Section 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));
(X) the notification of the Rating Agencies, 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);
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(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 or bad faith 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) indemnify the Owner Trustee and its agents for, and hold
them harmless against, any loss, liability or expense incurred
with out negligence or bad faith 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 Issuer for the
purpose of exe-
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cuting 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 5.04(a), (b), (c) and (d), the penultimate
sentence of Section 5.04 and Section 5.05(a) of the Owner Trust
Agreement with respect to, among other things, accounting and
reports to the Depositor.
(iv) 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.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates;
provided 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.
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(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not
take any action unless within a reasonable time before the taking
of such action, the Administrator shall have notified the Owner
Trustee and the Insurer of the proposed action and the Owner
Trustee and the Insurer shall not have unreasonably withheld
consent or provided an alternative direction. For the purpose of
the preceding sentence, "non-ministerial matters" shall include,
without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection
of the 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 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 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
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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 Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer 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, the
Owner Trustee or the Indenture Trustee in any way and shall not otherwise be
deemed an agent of the Issuer, the Owner Trustee or the Indenture Trustee.
SECTION 6. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Administrator and either 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 with at least 60 days'
prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuer may 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 be removed immediately upon written notice of
9
termination from the Issuer to the Administrator if any of the
following events shall
occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such
default, shall not cure such default within 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);
(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 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 shall have
been appointed by the Issuer with the consent of the Insurer 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.
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(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a successor Servicer pursuant to the
Sale and Servicing Agreement, the Administrator shall immediately resign and
such successor Servicer shall automatically become the Administrator under this
Agreement; provided, however, that this Section 8(f) shall not apply at such
times as the Indenture Trustee shall be the successor Servicer.
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 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 _____________
c/o _______________________________
___________________________________
Attention:
Telephone:
Telecopy:
(b) if to the Administrator, to:
AUTONATION FINANCIAL SERVICES CORP.
___________________________________
___________________________________
Attention:
Telephone:
Telecopy:
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(c) if to the Indenture Trustee, to:
___________________________________
___________________________________
___________________________________
Attention:
Telephone:
Telecopy:
(d) if to the Insurer, to:
___________________________________
___________________________________
___________________________________
Attention:
Telephone:
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
time by a written amendment duly executed and delivered by the parties hereto,
with the 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 by an Opinion of Counsel satisfactory to the
Indenture Trustee, materially and adversely affect the interest of any
Noteholder. This Agreement may also be amended by the parties hereto with the
written consent of the Owner Trustee, the Insurer (so long as the Insurer is the
Controlling Party) 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 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 be governed by,
and construed in accordance with, the laws of the State of New York.
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.
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 _______________, not in its individual
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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 ______________________________ not in
its individual capacity but solely 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
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, the
Seller, the Administrator, the Owner Trustee and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to the Issuer, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
under any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to the Seller, acquiesce, petition 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 substan-
14
tial 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 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.
15
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
By:
------------------------------
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------
Name:
Title:
AUTONATION RECEIVABLES
CORPORATION, as Seller
By:
------------------------------
Name:
Title:
------------------------------
not in its individual capacity
but solely as Indenture Trustee
By:
------------------------------
Name:
Title:
AUTONATION FINANCIAL
SERVICES CORP., as Administrator
By:
------------------------------
Name:
Title:
16
EXHIBIT A
FORM OF
POWER OF ATTORNEY
STATE OF____________ )
)
COUNTY OF _________ )
KNOW ALL MEN BY THESE PRESENTS, that __________________, a
________________________, not in its individual capacity but solely as owner
trustee ("Owner Trustee") for the ANRC Auto Owner Trust _____(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 _____________, ____, 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.
A-1
EXECUTED this ___ day of ____________, ____
----------------------------------
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
A-2
