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ADMINISTRATION AGREEMENT
among
DEALER AUTO RECEIVABLES OWNER TRUST 2000-1,
as Issuer,
PREMIER AUTO FINANCE, INC.,
as Administrator
DEALER AUTO RECEIVABLES CORP.,
as Depositor,
and
THE BANK OF NEW YORK,
as Indenture Trustee
Dated as of August 24, 2000
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR.........................................2
SECTION 2. RECORDS.............................................................7
SECTION 3. COMPENSATION........................................................7
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER................7
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR...................................7
SECTION 6. NO JOINT VENTURE....................................................7
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR...................................7
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL
OF ADMINISTRATOR....................................................8
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.....................9
SECTION 10. NOTICES.............................................................9
SECTION 11. AMENDMENTS.........................................................10
SECTION 12. SUCCESSORS AND ASSIGNS.............................................11
SECTION 13. GOVERNING LAW......................................................11
SECTION 14. HEADINGS...........................................................11
SECTION 15. COUNTERPARTS.......................................................11
SECTION 16. SEVERABILITY.......................................................11
SECTION 17. NOT APPLICABLE TO PREMIER IN OTHER CAPACITIES......................12
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND
INDENTURE TRUSTEE..................................................12
SECTION 19. THIRD-PARTY BENEFICIARY............................................12
SECTION 19. THIRD-PARTY BENEFICIARY............................................12
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This Administration Agreement (the "AGREEMENT"), dated as of August 24,
2000, is by and among Dealer Auto Receivables Owner Trust 2000-1 (the "ISSUER"),
Premier Auto Finance, Inc., in its capacity as administrator, (the
"ADMINISTRATOR"), Dealer Auto Receivables Corp. (the "DEPOSITOR") and The
Bank of New York, not in its individual capacity but solely as Indenture
Trustee (together with its successors and assigns, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 6.69% Dealer Auto Receivables
Asset-Backed, Class A-1 Notes, 7.01% Dealer Auto Receivables Asset-Backed,
Class A-2 Notes, 7.07% Dealer Auto Receivables Asset-Backed, Class A-3 Notes,
7.12% Dealer Auto Receivables Asset-Backed, Class A-4 Notes and 7.46% Dealer
Auto Receivables Asset-Backed, Class B Notes (collectively, the "NOTES")
pursuant to the Indenture, dated as of the date hereof (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
the Indenture) and the 7.93% Asset Backed Certificates pursuant to the Trust
Agreement (the "TRUST AGREEMENT") dated as of the date hereof between the
Depositor and Chase Manhattan Bank USA, National Association, as owner
trustee (the "OWNER TRUSTEE");
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and the Certificates, including (i)
a Sale and Servicing Agreement, dated as of the date hereof (the "SALE AND
SERVICING AGREEMENT"), among the Issuer, The Bank of New York, not in its
individual capacity but as Indenture Trustee, the Depositor and Premier Auto
Finance, Inc., as servicer (in such capacity, the "SERVICER"), and (ii) the
Indenture (collectively referred to hereinafter as the "TRANSACTION
DOCUMENTS");
WHEREAS, pursuant to the Transaction Documents, 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 Certificates (the registered holders of the
Certificates being referred to herein as the "OWNERS");
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 Transaction
Documents 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, THEREAFTER, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Indenture.
The Administrator agrees to perform all its duties as
Administrator under the Transaction Documents. In addition, the
Administrator shall consult with the Owner Trustee regarding the duties
of the Issuer or the Owner Trustee under the Indenture. 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
Indenture. 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 Indenture. 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 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 notification of Noteholders of the final principal
payment on their Notes (SECTION 2.07(b));
(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 maintenance of an office in the City of New York, New
York (which for the purposes hereof shall be the offices of the
Indenture Trustee), for registration of transfer or exchange of Notes
(SECTION 3.02);
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(F) 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);
(G) the direction to the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture Trustee (SECTION
3.03);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the collateral and each
other instrument and agreement included in the Collateral (SECTION
3.04);
(I) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action as is necessary or advisable to protect the
Collateral other than as prepared by the Servicer (SECTION 3.05);
(J) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel and certain other
statements as to compliance with the Indenture (SECTIONS 3.06 and
3.09);
(K) the identification to the Indenture Trustee 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));
(L) the notification of the Indenture Trustee and each Rating
Agency of a Servicer Default under the Sale and Servicing Agreement;
(M) the duty to cause the Servicer to comply with the Sale and
Servicing Agreement (SECTION 3.14);
(N) 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) and SECTION 3.11(b));
(O) the delivery of written notice to the Indenture Trustee
and each Rating Agency of each Event of Default under the Indenture and
each Servicer Default by the Servicer under the Sale and Servicing
Agreement (SECTION 3.18);
(P) the taking of such further actions as may be reasonably
necessary or proper to carry out more effectively the purpose of the
Indenture or to compel or secure the
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performance or observance by the Depositor or the Servicer of their
respective obligations under the Sale and Servicing Agreement
(SECTIONS 3.19 and 5.17);
(Q) 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);
(R) the compliance with any written directive of the Indenture
Trustee 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);
(S) the delivery to the Indenture Trustee of the information
necessary to deliver to each Noteholder such information as may be
required to enable such Holder to prepare its United States federal and
state and local income or franchise tax returns (SECTION 6.06);
(T) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (SECTION 6.08);
(U) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee or
separate trustee (SECTIONS 6.08 and 6.10);
(V) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (SECTION 7.01);
(W) the opening of one or more accounts in the Indenture
Trustee'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 (SECTIONS 8.02 and 8.03);
(X) 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 Collateral (SECTIONS
8.04 and 8.05);
(Y) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect
to such supplemental indentures (SECTIONS 9.01, 9.02 and 9.03);
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(Z) the execution and delivery of new Notes conforming to any
supplemental indenture (SECTION 9.06);
(AA) the duty to notify Noteholders of mandatory prepayment of
the Notes or to cause the Indenture Trustee to provide such
notification (SECTION 10.02);
(BB) 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));
(CC) 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));
(DD) the notification of the Rating Agencies, upon the failure
of the Issuer, the Owner Trustee or the Indenture Trustee to provide
notification;
(EE) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (SECTION 11.06); and
(FF) the recording of the Indenture, if applicable (SECTION
11.14).
(b) ADDITIONAL DUTIES.
(i) In addition to the duties set forth in SECTION 1(a), 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 the Issuer or the Owner Trustee are required to prepare, file or
deliver pursuant to the Transaction Documents or SECTION 5.05 of the
Trust Agreement, and at the request of the Owner Trustee shall take all
appropriate action that the Issuer or the Owner Trustee are required to
take pursuant to the Transaction Documents, including without
limitation, SECTION 6.02 of the Trust Agreement. 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 form of EXHIBIT A 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, and in
accordance with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Transaction
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Documents) as are not covered by any of the foregoing provisions and as
are expressly requested by the Issuer and are reasonably within the
capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Transaction Documents 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 an Owner as contemplated in SECTION 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(a), (b), (c) and (d), the duties of the Owner
Trustee to give the notices required by SECTION 4.01, the penultimate
sentence of SECTION 4.01, SECTION 5.05 and SECTION 5.06(a) of the Trust
Agreement with respect to, among other things, accounting and reports
to Owners; PROVIDED, HOWEVER, that the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s necessary to
enable each Owner to prepare its federal and state income tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of
the Issuer payable by the Administrator, a firm of independent public
accountants (the "ACCOUNTANTS") acceptable to the Owner Trustee, which
shall perform the obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in SECTION 10.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and shall
be, in the Administrator's opinion, no less favorable to the Issuer
than would be available from unaffiliated parties.
(c) NON-MINISTERIAL MATTERS.
(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 of the
proposed action and the Owner Trustee shall not have withheld
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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 Transaction
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators 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 Transaction
Documents, (B) sell the Collateral pursuant to clause (iv) of SECTION
5.04 of the Indenture or (C) take any other action that the Issuer
directs the Administrator not to take on its behalf.
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 Owner Trustee and the Indenture Trustee 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 a monthly
fee which shall be solely an obligation of the Servicer and shall be
agreeable to the Servicer and the Administrator.
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
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Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner
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 business
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 SECTION 8(d) and SECTION 8(e), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days'
prior written notice.
(b) Subject to SECTION 8(d) and SECTION 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 SECTION 8(d) and SECTION 8(e), at the sole option of
the Issuer, the Administrator may be removed immediately upon written notice
of termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten 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
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(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, 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 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 the 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 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 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.
SECTION 10. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Administrator:
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Premier Auto Finance, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx Xxxxx
Telecopier No.: 312/456-1068
(ii) If to the Depositor:
Dealer Auto Receivables Corp.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx Xxxxx
Telecopier No.: 312/456-1068
(iii) If to the Indenture Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx
Attention: ABS Department
Telecopier No.: 212/815-5544
(iv) If to the Issuer or the Owner Trustee:
Chase Manhattan Bank USA, National Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trustee
Administration Department
Telecopier No.: 302/984-4903
Each party hereto may, by notice given in accordance herewith to
each of the other parties hereto, designate any further or different address
to which subsequent notices shall be sent.
SECTION 11. AMENDMENTS. (a) 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 Owner Trustee but without the consent
of the Securityholders, to correct manifest error, to cure any ambiguity, to
correct or supplement any provisions herein which may be ambiguous or
inconsistent with any other provision herein or in any other Transaction
Document, as the case may be, or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; PROVIDED,
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HOWEVER that any such action shall not, as evidenced by an Opinion of
Counsel, materially and adversely affect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time with the
consent of the Owner Trustee and the Noteholders of more than 50% of the
aggregate principal amount of the Class A-1 Notes, Class A-2 Notes and Class
A-3 Notes, voting together as a single class, or, if there are no Class A-1
Notes, Class A-2 Notes, Class A-3 Notes or Class A-4 Notes outstanding, with
the consent of the Noteholders of more than 50% of the aggregate principal
amount of the Class B Notes, or, if there are no Notes outstanding, the
consent of Certificateholders of more than 50% of the Certificate Balance,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; PROVIDED,
HOWEVER, that no such amendment shall (x) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of payments
on the Contracts or distributions which are required to be made on any Note
or Certificate, (y) change the interest rate on any Notes or Certificates
which such change adversely affects the priority of payment of principal or
interest made to the Noteholders or Certificateholders or (z) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the Noteholders and Certificateholders then outstanding; and
PROVIDED, FURTHER, that no such amendment or consent shall be effective
unless each Rating Agency delivers written confirmation that such amendment
or consent will not cause its then-current rating on any Class of Notes or
Certificates to be qualified, reduced or withdrawn.
(c) Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Depositor, which permission
shall not be unreasonably withheld.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented
to in writing by the Issuer, the Indenture Trustee and the Owner 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 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 Owner Trustee and the Indenture Trustee an
agreement, in form and substance reasonably satisfactory to the Owner Trustee
and the Indenture Trustee, 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.
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SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 PREMIER AUTO FINANCE, INC. IN OTHER
CAPACITIES. Nothing in this Agreement shall affect any obligation Premier
Auto Finance, Inc. 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 Chase Manhattan Bank USA, National
Association not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer and in no event shall Chase Manhattan Bank USA,
National Association 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 Six, Seven and Eight of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by The Bank of New York not in its
individual capacity but solely as Indenture Trustee and in no event shall
The Bank of New York 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.
-12-
SECTION 19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a
party hereto.
SECTION 20. NO PETITION. The Administrator will not at any time
institute against the Issuer or the Depositor any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Certificates, the Notes, this
Agreement or any of the other Transaction Documents.
-13-
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the day and year first
above written.
DEALER AUTO RECEIVABLES OWNER TRUST 2000-1, as Issuer
By: Chase Manhattan Bank USA, National Association, not
in its individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Printed Name: Xxxxx Xxxxx
----------------------------------
Title: Assistant Vice President
-----------------------------------------
DEALER AUTO RECEIVABLES CORP., as Depositor
By: /s/ Xxxxxxx Xxxxxxxx Xxxxx
-------------------------------------------------
Printed Name: Xxxxxxx Xxxxxxxx Xxxxx
----------------------------------
Title: EVP & CFO
-----------------------------------------
THE BANK OF NEW YORK, not in its individual capacity but
solely as Indenture
Trustee
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Printed Name: Xxxxx Xxxxxxx
----------------------------------
Title: Assistant Treasurer
-----------------------------------------
PREMIER AUTO FINANCE, INC., as Administrator
By: /s/ Xxxxxxx X. Van Over
-------------------------------------------------
Printed Name: Xxxxxxx X. Van Over
----------------------------------
Title: EVP & COO
-----------------------------------------
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of Illinois )
) SS.
County of Xxxx )
KNOW ALL PERSONS BY THESE PRESENTS, that Chase Manhattan Bank USA,
National Association, (the "OWNER TRUSTEE"), whose principal executive office
is located at Chase Manhattan Bank USA, National Association, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, by and through its duly elected and
authorized officer, ________________________, a ___________________, on
behalf of itself and of Dealer Auto Receivables Owner Trust 2000-1 (the
"TRUST") as Issuer under the Administration Agreement, dated as of August 24,
2000 (the "ADMINISTRATION AGREEMENT"), among the Trust, Dealer Auto
Receivables Corp., The Bank of New York, as Indenture Trustee, and Premier
Auto Finance, Inc., as Administrator, does hereby nominate, constitute and
appoint Premier Auto Finance, Inc., a Delaware corporation, each of its
officers from time to time and each of its employees authorized by it from
time to time to act hereunder, jointly and each of them severally, together
or acting alone, its true and lawful attorney-in-fact, for the Owner Trustee
and the Issuer in their name, place and xxxxx, in the sole discretion of such
attorney-in-fact, to perform such calculations and prepare or cause the
preparation by other appropriate persons of, and to execute on behalf of the
Issuer or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that the Issuer or the Owner Trustee
is required to prepare, file or deliver pursuant to the Administration
Agreement, and to take any and all other action, as such attorney-in-fact may
deem necessary or desirable in accordance with the directions of the Owner
Trustee and in connection with its duties as Administrator or successor
Administrator under the Administration Agreement. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in the Administration Agreement.
The Owner Trustee hereby ratifies and confirms the execution,
delivery and performance (whether before or after the date hereof) of the
above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Owner Trustee hereby agrees that no person or other entity
dealing with the attorney-in-fact shall be bound to inquire into such
attorney-in-fact's power and authority hereunder and any such person or
entity shall be fully protected in relying on such power of authority.
A-1
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflicts of law.
Executed as of this 24th day of August, 2000.
Chase Manhattan Bank USA, National Association, not in
its individual capacity but solely as Owner Trustee
By:
-------------------------------
Printed Name:
-----------------------
Title:
------------------------------
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of Illinois )
) SS.
County of Xxxx )
On ____________, 2000 before me, ______________________________________
[Here insert name and title of notary]
personally appeared ________________________.
/ / personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
----------------------------------------
[SEAL]
