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AMENDED AND RESTATED
OWNER TRUST AGREEMENT
between
AUTONATION RECEIVABLES CORPORATION,
as Depositor
______________________________,
as Owner Trustee
Dated as of ______________, ____
ANRC AUTO OWNER TRUST _________
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...................................................1
SECTION 1.01. Capitalized Terms..................1
SECTION 1.02. Other Definitional Provisions......4
SECTION 1.03. Usage of Terms.....................4
SECTION 1.04. Section References.................4
SECTION 1.05. Accounting Terms...................4
ARTICLE II
ORGANIZATION..................................................5
SECTION 2.01. Name...............................5
SECTION 2.02. Office.............................5
SECTION 2.03. Purposes and Powers................5
SECTION 2.04. Appointment of Owner Trustee.......6
SECTION 2.05. Initial Capital Contribution of
Trust Estate....................6
SECTION 2.06. Declaration of Trust...............6
SECTION 2.07. Title to Trust Property............7
SECTION 2.08. Situs of Trust.....................7
SECTION 2.09. Representations and Warranties of
the Depositor...................8
SECTION 2.10. [RESERVED].........................9
ARTICLE III
CERTIFICATE..................................................10
SECTION 3.01. Initial Ownership.................10
SECTION 3.02. The Residual Interest Certificate
and the Notes..................10
SECTION 3.03. Execution, Authentication and
Delivery of the Residual
` Interest Certificate
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and the Notes..................10
SECTION 3.04. Restrictions on Transfer..........11
SECTION 3.05. Mutilated, Destroyed, Lost or
Stolen Residual Interest
Certificate.......................11
SECTION 3.06. Maintenance of Office or Agency...12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE.....................................13
SECTION 4.01. Prior Notice to Depositor with
Respect to Certain Matters.....13
SECTION 4.02. Action by the Depositor with
Respect to Certain Matters.....14
SECTION 4.03. Action by the Depositor with
Respect to Bankruptcy..........15
SECTION 4.04. Restrictions on Power.............15
ARTICLE V
APPLICATION OF TRUST FUNDS: CERTAIN DUTIES...................16
SECTION 5.01. [RESERVED]........................16
SECTION 5.02. Application of Trust Funds........16
SECTION 5.03. Method of Payment.................16
SECTION 5.04. No Segregation of Monies; No
Interest.......................16
SECTION 5.05. Accounting and Reports to the
Noteholders, Owners, the
Internal Revenue Service and
Others.........................17
SECTION 5.06. Signature on Returns; Tax Matters
Partner........................17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE........................18
SECTION 6.01. General Authority.................18
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SECTION 6.02. General Duties....................18
SECTION 6.03. Action Upon Instruction...........19
SECTION 6.04. No Duties Except as Specified in
this Agreement or in
Instructions...................20
SECTION 6.05. No Action Except Under Specified
Documents or Instructions......20
SECTION 6.06. Restrictions......................20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE.................................21
SECTION 7.01. Acceptance of Trusts and Duties...21
SECTION 7.02. Furnishing of Documents...........24
SECTION 7.03. Representations and Warranties....24
SECTION 7.04. Reliance; Advice of Counsel.......25
SECTION 7.05. Not Acting in Individual
Capacity.......................26
SECTION 7.06. Owner Trustee Not Liable for
Residual Interest Certificate,
Notes or Contracts.............26
SECTION 7.07. Owner Trustee May Own Notes.......26
ARTICLE VIII
COMPENSATION AND INDEMNIFICATION OF OWNER
TRUSTEE......................................................27
SECTION 8.01. Owner Trustee's Fees and
Expenses.......................27
SECTION 8.02. Indemnification...................27
SECTION 8.03. Payments to the Owner Trustee.....27
ARTICLE IX
TERMINATION OF TRUST AGREEMENT...............................28
SECTION 9.01. Termination of Trust Agreement....28
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEE......................................................29
SECTION 10.01. Eligibility Requirements for
Owner Trustee..................29
SECTION 10.02. Resignation or Removal of Owner
Trustee........................29
SECTION 10.03. Successor Owner Trustee..........30
SECTION 10.04. Merger or Consolidation of Owner
Trustee........................31
SECTION 10.05. Appointment of Co-Trustee or
Separate Trustee..............31
ARTICLE XI
MISCELLANEOUS................................................34
SECTION 11.01. Supplements and Amendments.......34
SECTION 11.02. No Legal Title to Trust Estate in
Depositor......................35
SECTION 11.03. Limitations on Rights of Others..36
SECTION 11.04. Notices..........................36
SECTION 11.05. Severability of Provisions.......36
SECTION 11.06. Counterparts.....................36
SECTION 11.07. Successors and Assigns...........36
SECTION 11.08. No Petition......................37
SECTION 11.09. No Recourse......................37
SECTION 11.10. Headings.........................37
SECTION 11.11. Governing Law....................37
SECTION 11.12. Depositor Payment Obligation.....37
SECTION 11.13. Certain Matters Regarding the
Insurer........................38
SECTION 11.14. Fiduciary Duties.................38
SECTION 11.15. Third Party Beneficiary..........38
EXHIBIT A.........................................................A-1
EXHIBIT B.........................................................B-1
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This AMENDED AND RESTATED OWNER TRUST AGREEMENT, dated as of
________________, _____________ (as amended, supplemented or otherwise modified
and in effect from time to time, this "Agreement"), is between AUTONATION
RECEIVABLES CORPORATION, a Delaware corporation, as depositor (together with its
successors and assigns in such capacity, the "Depositor"), and ______________, a
________________, as owner trustee (together with its successors and assigns in
such capacity, the "Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. Except as otherwise provided in
this Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Administration Agreement" shall mean that certain Administration
Agreement, dated as of _______________________, ____________, by and among the
Trust, the Depositor, the Indenture Trustee and AutoNation Financial Services,
as administrator.
"Administrator" shall mean the Person acting as "Administrator"
under the Administration Agreement.
"Agreement" shall have the meaning specified in the
recitals hereto.
"Applicants" shall have the meaning assigned to such
term in Section 3.07.
"AutoNation Financial Services" shall mean AutoNation Financial
Services Corp. and its successors and assigns.
"Basic Documents" shall have the meaning set forth in
the Indenture.
"Benefit Plan" shall mean (i) an employee benefit plan (as such term
is defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as the same may be amended from
time to time.
"Certificate of Trust" shall mean the Certificate of Trust filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute,
substantially in the form of Exhibit A hereto.
"Closing Date" shall mean __________________________, ____________.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Depositor" shall mean AutoNation Receivables Corporation, in its
capacity as depositor hereunder, and its successors.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 8.02.
"Indenture" shall mean the indenture dated as of ___________, ____,
between the Trust, as Issuer, and ___________________, as Indenture Trustee.
"Insurer" shall mean ________________________, a
_____________________, and its permitted successors and assigns in such
capacity.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes, in each case issued pursuant to the
Indenture.
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"Owner Trustee" shall mean _________________________, a
________________________, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" shall mean the office of the
Owner Trustee at which its corporate trust business shall be principally
administered, which initially shall be _______________________, Attention:
___________________, or such other office at such other address as the Owner
Trustee may designate from time to time by notice to the Servicer, the Depositor
and the Insurer.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, limited liability company or limited
liability partnership, joint venture, association, joint stock company, business
trust, trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Residual Interest Certificate" shall mean the certificate
evidencing the beneficial interest of the Depositor in the Trust, substantially
in the form attached hereto as Exhibit B.
"Responsible Officer" shall mean any officer of the Owner Trustee
within the Owner Trustee Corporate Trust Office, including any vice president,
assistant vice president, assistant treasurer, assistant secretary or other
officer or assistant officer of the Owner Trustee, customarily performing
functions similar to those performed by the people who at such time shall be
officers and has direct responsibility for the administration of this Agreement.
"Sale and Servicing Agreement" shall mean that certain Sale and
Servicing Agreement, dated as of _________________________, ___________, by and
among the Trust, as Issuer, the Depositor, as Seller, AutoNation Financial
Services, as Servicer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Seller" shall mean AutoNation Receivables Corporation, a Delaware
corporation, in its capacity as seller under the Sale and Servicing Agreement,
and its permitted successors and assigns.
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"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the owner trust established by this
Agreement.
"Trust Estate" shall have the meaning set forth in the Sale and
Servicing Agreement.
"Trust Property" shall have the meaning set forth in
Section 2.01 of the Sale and Servicing Agreement.
SECTION 1.02. Other Definitional Provisions. Capitalized terms used
herein that are not otherwise defined herein shall have the meanings ascribed
thereto in, or incorporated by reference into, the Sale and Servicing Agreement
or, if not defined therein, in the Indenture.
SECTION 1.03. Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation".
SECTION 1.04. Section References. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05. Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States of America.
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ARTICLE II
ORGANIZATION
SECTION 2.01. Name. The Trust created hereby shall be known as ANRC
Auto Owner Trust _______________, in which name the Owner Trustee may conduct
the activities of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued, and in which name the Owner Trustee may
perform its duties hereunder.
SECTION 2.02. Office. The office of the Trust shall be in care of
the Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Depositor, the Depositor, the Servicer and the Insurer.
SECTION 2.03. Purposes and Powers. The sole purpose of the Trust is
to conserve the Trust Estate and collect and disburse the periodic income there
from for the use and benefit of the Depositor, and in furtherance of such
purpose to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the Residual
Interest Certificate pursuant to this Agreement and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to purchase the
Contracts, to fund the Spread Account and to pay the organizational,
start-up and transactional expenses of the Trust and to pay the balance to
the Depositor pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
("Grant") the Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Depositor pursuant to the Sale and Servicing
Agreement any portion of the Trust Estate released from the lien of, and
remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of
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the Trust Estate and the making of distributions to the Noteholders and
the Depositor; and
(vi) to engage in those activities, including entering into
agreements, that are necessary to accomplish the foregoing or are
incidental thereto or connected therewith.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
SECTION 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Business Trust Statute, and the Owner Trustee hereby accepts such appointment.
The Owner Trustee is hereby authorized and directed to file the Certificate of
Trust with the Secretary of State.
SECTION 2.05. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, in an amount equal to $_____________. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Trust
Estate and shall be held by the Owner Trustee. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Estate
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Depositor, subject to the obligations of the Trust under the
Basic Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. It is also
the intention of the parties hereto that, solely for income and franchise tax
purposes, on and after the Closing Date, so long as the Trust has only one
holder of the Residual Interest Certificate, the Trust shall be disregarded as a
separate entity and shall be treated as a division of the Depositor. At such
time as the Trust
6
has more than one holder of any certificate issued by the Trust (including any
holders of the Residual Interest Certificate) the Trust will be treated as a
partnership. The Depositor and the Owner Trustee agree to take no action
inconsistent with such tax treatment. The Trust shall not elect to be treated as
an association under Section 301.7701-3(a) of the regulations of the United
States Department of the Treasury for federal income tax purposes. The parties
agree that, unless otherwise required by appropriate tax authorities, the Trust
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the foregoing characterization of the Trust for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Business Trust Statute
for the sole purpose and to the extent necessary to accomplish the purposes of
the Trust as set forth in Section 2.03.
SECTION 2.07. Title to Trust Property. Subject to the Indenture,
legal title to all the Trust Estate shall be vested at all times in the Trust as
a separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee and/or a
separate trustee, as the case may be.
The Depositor shall not have legal title to any part of the Trust
Estate. No transfer, by operation of law or otherwise, of any right, title or
interest of the Depositor to and in its ownership interest in the Trust Estate
shall operate to terminate this Agreement or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 2.08. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained on behalf of
the Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any state other than Delaware;
provided that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments will be
received by the Trust only in Delaware or New York and payments will be made by
the Trust only from Delaware or New York. The only office of the Trust will be
at the Owner Trustee Corporate Trust Office. The Owner Trustee Office shall not
at any time be located in the State of Florida and no Owner Trustee, present or
future, may at any time relocate the Owner Trustee Office.
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SECTION 2.09. Representations and Warranties of the
Depositor.
(a) The Depositor hereby represents and warrants to the Owner
Trustee and the Insurer that:
(i) The Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the laws of
the State of Delaware, with power and authority to own its properties and
to conduct its business and had at all relevant times, and has, power,
authority and legal right to acquire and own the Contracts.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualifications.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee on behalf of the Trust as
part of the Trust Estate and has duly authorized such sale and assignment
and deposit with the Owner Trustee on behalf of the Trust by all necessary
corporate action. The execution, delivery and performance of this
Agreement have been duly authorized by the Depositor by all necessary
corporate action. The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of the Depositor enforceable against the Depositor in
accordance with its terms.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in the breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the certificate
of incorporation or bylaws of the Depositor, or any indenture, agreement
or other instrument to which the Depositor is a party or by which it is
bound; nor result in the creation or imposition of any lien upon any of
the properties of the Depositor pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or any order, rule or regulation
applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other govern-
8
mental instrumentality having jurisdiction over the Depositor or its
properties.
(v) There are no proceedings or investigations pending, or to the
Depositor's best knowledge threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A) asserting the
invalidity of this Agreement, any of the other Basic Documents or the
Residual Interest Certificate, (B) seeking to prevent the issuance of the
Residual Interest Certificate or the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic
Documents, (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement, any of the
other Basic Documents or the Residual Interest Certificate or (D)
involving the Depositor and which might materially and adversely affect
the federal income tax or other federal, state or local tax attributes of
the Residual Interest Certificate.
SECTION 2.10. [RESERVED]
9
ARTICLE III
CERTIFICATE
SECTION 3.01. Initial Ownership. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.05, the Depositor shall
be the sole beneficiary of the Trust.
SECTION 3.02. The Residual Interest Certificate and the Notes.
(a) On the Closing Date, the Residual Interest Certificate shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee, and authenticated by
the Owner Trustee by the manual or facsimile signature of an authorized officer
of the Owner Trustee and shall be deemed to have been validly issued when so
executed and authenticated. The Residual Interest Certificate, bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Owner Trustee shall
be validly issued by the Trust, notwithstanding that such individuals or any of
them have ceased to be so authorized prior to the execution, authentication and
delivery of the Residual Interest Certificate or did not hold such offices at
the date of the Residual Interest Certificate. The Residual Interest Certificate
shall be dated the date of its authentication.
(b) The Notes shall be executed by the Owner Trustee on behalf of
the Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee, and shall be authenticated as provided in the Indenture. Notes bearing
the manual or facsimile signature of an individual who was, at the time when
such signature was affixed, authorized to sign on behalf of the Owner Trustee
shall be deemed to have been validly executed by the Trust, notwithstanding that
such individual has ceased to be so authorized prior to the execution and
delivery of such Notes or did not hold such office at the date of such Notes.
SECTION 3.03. Execution, Authentication and Delivery of the Residual
Interest Certificate and the Notes. The Owner Trustee shall cause to be
executed, authenticated and delivered upon the order of the Depositor, in
exchange for the Contracts and the other assets of the Trust, simultaneously
with the sale, assignment and transfer to the Trust of the Contracts, and such
other assets, (a) the Residual Interest Certificate evidencing the entire
ownership of the Owner Trust and
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(b) Notes executed by the Trust in aggregate principal amount of, in the case of
the (i) Class A-1 Notes, $ ____________________, (ii) Class A-2 Notes,
$_______________, (iii) Class A-3 Notes, $______________, and (iv) Class A-4
Notes, $____________. The Owner Trustee is hereby authorized to direct, on
behalf of the Trust the Indenture Trustee to authenticate and deliver the Notes
upon the written order of the Depositor. The Residual Interest Certificate shall
not be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Residual Interest Certificate a
certificate of authentication substantially in the form set forth in the form of
Certificate attached hereto as Exhibit B executed by the Owner Trustee or
another authenticating agent of the Owner Trustee, by manual or facsimile
signature, and such certificate upon the Residual Interest Certificate shall be
conclusive evidence, and the only evidence, that such Residual Interest
Certificate has been duly authenticated and delivered hereunder. Upon issuance,
authorization and delivery pursuant to the terms hereof, the Residual Interest
Certificate will be entitled to the benefits of this Agreement. The Residual
Interest Certificate shall be dated the date of its authentication.
SECTION 3.04. Restrictions on Transfer. The Residual Interest
Certificate (or any interest therein) may not be sold, transferred, assigned,
participated, pledged or otherwise disposed of by the Depositor to any Person
unless (i) the transfer is made pursuant to an applicable exemption from
registration under the Securities Act and in compliance with any applicable
ERISA restrictions and (ii) prior to such transfer, (A) an Opinion of Counsel in
form and content acceptable to the Owner Trustee and to the Indenture Trustee is
delivered to the Owner Trustee and to the Indenture Trustee stating, among other
things, that such transfer shall not cause the Trust to be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes and (B) prior notice is given to each Rating Agency.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Residual Interest
Certificate. If (a) the mutilated Residual Interest Certificate is surrendered
to the Owner Trustee, or the Owner Trustee receives evidence to its satisfaction
of the destruction, loss or theft of the Residual Interest Certificate, and (b)
there is delivered to the Owner Trustee such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice that such
Residual Interest Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or its
authenticating agent, shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Residual Interest Certificate,
a new Residual Interest Certificate. In connection with the issuance of a new
Residual Interest Certificate under this Section 3.05, the Owner
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Trustee may require the payment by the Depositor of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto.
Any duplicate Residual Interest Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Residual
Interest Certificate shall be found at any time.
SECTION 3.06. Maintenance of Office or Agency. The Owner Trustee
shall maintain in The City of New York an office or offices or agency or
agencies where notices and demands to or upon the Owner Trustee in respect of
the Residual Interest Certificate and the Basic Documents may be served. The
Owner Trustee hereby designates the office of ______________________________,
Attention: _____________________________, as its office for such purposes.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Depositor with Respect to Certain
Matters. Subject to the provisions and limitations of Section 4.04, with respect
to the following matters, the Owner Trustee shall not take any action unless at
least 30 days before the taking of such action, the Owner Trustee shall have
notified the Depositor in writing of the proposed action and the Depositor shall
not have notified the Owner Trustee in writing prior to the taking of such
action that the Depositor has withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the Contracts)
and the compromise of any action, claim or lawsuit brought by or against the
Trust (except with respect to the aforementioned claims or lawsuits for
collection of the Contracts);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Depositor;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially adversely affect the
interests of the Depositor; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, paying agent for the Notes or Indenture Trustee, or the consent to
the assignment by the Note Registrar, Paying Agent for the Notes or the
Indenture Trustee of its obligations under the Indenture.
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(g) the consent to the calling or waiver of any default of any Basic
Document.
(h) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Basic Document, unless
permitted in the Basic Documents.
(i) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the Basic Documents.
(j) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose.
(k) cause the Trust to lend any funds to any entity, unless
permitted in this Agreement or the Basic Documents.
In addition, the Trust shall not commingle its assets with those of
any other entity. The Trust shall maintain its financial and accounting books
and records separately from those of any other entity. Except as expressly set
forth herein, the Trust shall not pay any indebtedness, operating expenses or
liabilities of any other entity. The Trust shall maintain appropriate minutes or
other records of all appropriate actions and shall maintain its offices separate
from the offices of the Depositor and the Servicer.
SECTION 4.02. Action by the Depositor with Respect to Certain
Matters. Subject to the provisions and limitations of Section 4.04, the Owner
Trustee shall not have the power, except upon the direction of the Depositor and
with the prior written consent of the Insurer (so long as no Insurer Default
shall have occurred and be continuing), to (a) remove the Administrator pursuant
to Section 8 of the Administration Agreement, (b) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement, (c) remove
the Servicer pursuant to Section 7.01 of the Sale and Servicing Agreement, (d)
except as expressly provided in the Basic Documents, sell the Contracts after
the termination of the Indenture, (e) initiate any claim, suit or proceeding by
the Trust or compromise any claim, suit or proceeding brought by or against the
Trust, (f) authorize the merger or consolidation of the Trust with or into any
other business trust or entity (other than in accordance with Section 3.10 of
the Indenture) or (g) amend the Certificate of Trust. The Owner Trustee may only
take the actions referred to in the preceding sentence upon written
14
instructions signed by the Depositor and, so long as no Insurer Default shall
have occurred and is continuing, with the prior written consent of the
Insurer.
SECTION 4.03. Action by the Depositor with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior written consent of the
Insurer and the prior approval of the Depositor and the delivery to the Owner
Trustee by the Depositor of a certificate certifying that the Depositor
reasonably believes that the Trust is insolvent.
SECTION 4.04. Restrictions on Power. The Owner Trustee shall not be
required to take or to refrain from taking any action if such action or inaction
would be contrary to any obligation of the Trust, or of the Owner Trustee under
this Agreement or any of the other Basic Documents or would be contrary to the
purpose of this Trust as set forth in Section 2.03, nor shall the Owner Trustee
be obligated to follow any such direction, if given.
15
ARTICLE V
APPLICATION OF TRUST FUNDS: CERTAIN DUTIES
SECTION 5.01. [RESERVED]
SECTION 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall direct the
Paying Agent to distribute to the Depositor distributions as provided in Section
4.03(b) of the Sale and Servicing Agreement with respect to such
Distribution Date.
(b) On each Distribution Date, the Owner Trustee, shall cause the
Paying Agent to send to each Depositor the statement or statements provided to
the Owner Trustee by the Servicer pursuant to Section 4.05 of the Sale and
Servicing Agreement with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to the Depositor, such tax shall reduce the
amount otherwise distributable to the Depositor in accordance with this Section
5.01. The amount of any withholding tax imposed with respect to the Depositor
shall be treated as cash distributed to the Depositor at the time it is withheld
by the Trust for remittance to the appropriate taxing authority.
SECTION 5.03. Method of Payment. Subject to Section 9.01(c)
respecting the final payment upon retirement of the Residual Interest
Certificate, distributions required to be made to the Depositor on the related
Record Date shall be made by wire transfer or check mailed to the Depositor.
SECTION 5.04. No Segregation of Monies; No Interest. Subject to
Section 5.01, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
16
SECTION 5.05. Accounting and Reports to the Noteholders, Owners, the
Internal Revenue Service and Others. Unless otherwise required under the Code,
the Owner Trustee shall (a) maintain (or cause to be maintained) the books of
the Trust on a calendar year basis and the accrual method of accounting, (b)
deliver to the Depositor, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including, if applicable,
Schedule K-1) to enable the Depositor to prepare its federal and state income
tax returns, (c) file such tax returns, if any, relating to the Trust
(including, if applicable, a partnership information return, IRS Form 1065) and
make such elections as from time to time may be requested by the Depositor (so
long as such request is not detrimental to the Noteholders or the Insurer) under
any applicable state or federal statute or any rule or regulation thereunder so
as to maintain the Trust's characterization as a division of the Depositor, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected and paid over to the applicable authorities any
withholding tax as described in and in accordance with Section 5.02(c) with
respect to income or distributions to Depositor.
SECTION 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust, unless applicable law requires the Depositor as holder of
the Residual Interest Certificate to sign such documents, in which case such
documents shall be signed by the Depositor.
(b) At such time as the Trust is treated as a partnership, the
Depositor shall be designated the "tax matters partner" of the Trust pursuant to
Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations.
17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust the Basic Documents to
which the Trust is to be a party and each certificate or other document attached
as an exhibit to or contemplated by the Basic Documents to which the Trust is to
be a party and any amendment thereto or other agreement, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator directs in writing with respect to the Basic Documents.
SECTION 6.02. General Duties. Subject to the provisions and
limitations of Sections 2.03 and 2.06:
(a) it shall be the duty of the Owner Trustee to discharge (or cause
to be discharged through the Administrator or such agents as shall be appointed
with the consent of the Insurer) all of its responsibilities pursuant to the
terms of this Agreement and the other Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Depositor, subject to
the Basic Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee or
the Trust hereunder or under any Basic Document, and the Owner Trustee shall not
be held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(b) it shall be the duty to execute documents provided to it to
qualify and preserve the Issuer's qualification to do business in each
jurisdiction, if any, in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Contracts and any other instrument and agreement included in the Trust Estate;
provided, that the Owner Trustee may rely on advice of counsel with respect to
such obligation.
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SECTION 6.03. Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law.
(b) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Depositor and the Insurer requesting instruction as to the course of action
to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Depositor received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement and the other Basic Documents, as it shall deem
to be in the best interest of the Depositor, and shall have no liability to any
Person for such action or inaction.
(c) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Depositor
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem
19
to be in the best interests of the Depositor, and shall have no liability to any
Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03; and no implied duties or obligations
shall be read into this Agreement or any other Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any other Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the Grant of any portion thereof to the Indenture Trustee
pursuant to the Indenture.
SECTION 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except in accordance with
(i) the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) the other Basic Documents and (iii) any
document or instruction delivered to the Owner Trustee pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any
action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal or state
income tax purposes. The Depositor shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.06.
20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement and the
other Basic Documents. The Owner Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Owner Trustee and, in the absence of bad faith on the part of the
Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates, opinions or documents (whether in their original or facsimile
form) furnished to the Owner Trustee and conforming to the requirements of this
Agreement. The Owner Trustee agrees to disburse all monies actually received by
it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any circumstances,
except (i) for its own willful misconduct or negligence; (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.03 expressly
made by the Owner Trustee (iii) for its failure to use ordinary care in the
handling of funds. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee unless grossly negligent in
asserting pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with this
Agreement, the Basic Documents or the written direction of the Administrator or
any Depositor;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
reasonably satisfactory to it against such risk or liability is not reasonably
assured or provided to it;
21
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Residual Interest Certificate, and the Owner Trustee shall not assume or
incur any liability, duty or obligation to any Noteholder or to the Depositor,
other than as expressly provided for herein or expressly agreed to by the Owner
Trustee in the other Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Depositor, the Insurer, the Indenture
Trustee or the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the obligations
of the Trust under this Agreement or the other Basic Documents that are required
to be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer or the Depositor under the
Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any other Basic Document, at the request, order or direction
of the Depositor, unless the Depositor has offered to the Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee, therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in any
other Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of any such act;
(h) the Owner Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default, any Event of Default or
Servicer Default under any of the Basic Documents unless a Responsible Officer
of the Owner Trustee shall have received written notice thereof or shall have
knowledge thereof. In the absence of knowledge or receipt of such notice, the
Owner Trustee
22
may conclusively assume that there is no default, Event of Default or Servicer
Default;
(i) the Owner Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, opinion of
counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document (whether in its original or facsimile form) believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(j) the Owner Trustee may consult with counsel of its own selection
and any advice or opinion of counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion of
counsel;
(k) the Owner Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the
Administrator or Depositor; provided that if the payment within a reasonable
time to the Owner Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Owner Trustee not reasonably assured to it by the security afforded to them by
the terms of this Agreement, the Owner Trustee may require reasonable indemnity
reasonably satisfactory to it against such cost, expense or liability as a
condition to taking any such action;
(l) the Owner Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust created hereby or the powers
granted hereunder; and
(m) the Owner Trustee may execute any of its trusts or powers
hereunder or perform any of its respective duties hereunder either directly or
by or through agents, attorneys or custodians of its own selection, provided the
Owner Trustee shall remain liable for any misconduct or negligence on the part
of any such agent, attorney or custodian.
23
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Depositor, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 7.03. Representations and Warranties.
(a) The Owner Trustee hereby represents and warrants to
the Depositor and the Insurer:
(i) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or bylaws or to the best of its knowledge without
independent investigation, any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its properties may
be bound or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Estate resulting from actions by or claims
against the Owner Trustee individually which are unrelated to this
Agreement or the other Basic Documents.
(iv) it has the power and authority to execute and deliver this
Agreement and the other Basic Documents to which it is a party and to
carry out their respective terms; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which it is
a party have been duly authorized by all necessary corporate action.
24
(v) This Agreement and the other Basic Documents to which it is a
party constitute a legal, valid, and binding obligations of the Owner
Trustee enforceable in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
SECTION 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall not incur liability to anyone in acting
upon any signature, instrument notice, resolution, request, consent order,
certificate, report, opinion, bond or other document or paper (whether in its
original or facsimile form) believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing body
of any corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof conclusively
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it at
the sole expense of the Depositor. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such
persons.
25
SECTION 7.05. Not Acting in Individual Capacity. Except as otherwise
provided in this Article VII, in accepting the trusts hereby created, acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only to
the Trust Estate for payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Residual Interest
Certificate, Notes or Contracts. The recitals contained herein and in the Notes
(other than the signatures of the Owner Trustee and the statements made by the
Owner Trustee in Section 7.03) shall be taken as the statements of the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. Except as set forth in Section 7.03, the Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement or any other
Basic Document (other than the signatures of the Owner Trustee) or the Notes, or
of any Contract or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Contract, or the perfection and priority of any
security interest created by any Contract in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Vehicle; the
existence and enforceability of any insurance thereon; the existence and
contents of any Contract on any computer or other record thereof; the validity
of the assignment of any Contract to the Trust or of any intervening assignment;
the completeness of any Contract; the performance or enforcement of any
Contract; the compliance by the Depositor, the Insurer or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation; or any action
of the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee.
SECTION 7.07. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Depositor, the Insurer, the Administrator, the Indenture
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
26
ARTICLE VIII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Owner Trustee and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
SECTION 8.02. Indemnification. The Depositor shall be liable as
primary obligor for, and shall fully indemnify the Owner Trustee and its
respective officers, directors, employees, successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by or asserted against
the Owner Trustee or any Indemnified Party in any way relating to or arising out
of this Agreement, the other Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Depositor shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from any of the matters described in the fourth sentence of Section
7.01. The Depositor will in no event be entitled to make any claim upon the
Trust Property for the payment or reimbursement of any Expenses. The indemnities
contained in this Section 8.02 shall survive the resignation or termination of
the Owner Trustee and the termination of this Agreement. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to this
Section 8.02, the choice of legal counsel by the Owner Trustee shall be subject
to the approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION 8.03. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Trust Estate immediately after such payment.
27
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Articles V and
VIII) and the Trust shall terminate and be of no further force or effect upon
the earlier of (i) final distribution of all monies or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture, the
Sale and Servicing Agreement and Article V hereof and (ii) the expiration of 21
years from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, former President of the United States of America, living on the date
hereof. The bankruptcy, liquidation, dissolution, death or incapacity of the
Depositor shall not (i) operate to terminate this Agreement or the Trust, (ii)
entitle the Depositor's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
all or any part of the Trust or Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
the Insurer shall be entitled to revoke or terminate the Trust.
(c) Upon the winding up of the Trust and its termination, the Owner
Trustee shall, upon receipt of a written request therefor, cause the Certificate
of Trust to be canceled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of the Business Trust
Statute.
28
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEE
SECTION 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; (iii) have a combined capital and surplus of at least $50,000,000 and
shall be subject to supervision or examination by federal or state authorities;
and (iv) have (or have a parent that has) a rating of at least Baa3 by Moody's
and BBB- by Standard & Poor's. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 10.01, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section 10.01,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator and the Insurer. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to the
successor Owner Trustee; provided that the Depositor and the Insurer shall have
received written confirmation from each Rating Agency that the proposed
appointment will not result in an increased capital charge to the Insurer by
either Rating Agency. If no successor Owner Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee or the Insurer may petition, at the
expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If, at any time, the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator or the Insurer, or if at any time
the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt
or insolvent, or a
29
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator or the Insurer may remove the Owner Trustee.
If the Owner Trustee shall be removed under the authority of the immediately
preceding sentence, the Administrator shall promptly appoint a successor Owner
Trustee acceptable to the Insurer by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee, and shall pay all fees owed to the
outgoing Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee or the Insurer may petition,
at the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to the Depositor, the Indenture
Trustee, the Insurer, the Noteholders and to each Rating Agency.
SECTION 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Sections 10.01 or 10.02 shall execute, acknowledge and
deliver to the Administrator, the Insurer and to its predecessor Owner Trustee
an instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective,
and such successor Owner Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses (and the fees and expenses of its agents and counsel) deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
30
No successor Owner Trustee shall accept appointment as provided in
this Section 10.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 10.03, the Administrator shall mail notice thereof to the
Insurer, the Depositor, the Servicer, the Indenture Trustee, the Noteholders and
each Rating Agency. If the Administrator shall fail to mail such notice within
10 days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
Any successor Owner Trustee appointed pursuant to this Section 10.03
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
SECTION 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation shall be eligible pursuant to
Section 10.01 and, provided, further, that (a) the Owner Trustee shall mail
notice of such merger or consolidation to each Rating Agency and the Insurer and
(b) the Owner Trustee shall file any necessary amendments to the Certificate of
Trust with the Delaware Secretary of State.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator, the Insurer and Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust or any part thereof and,
31
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Owner Trustee and the Insurer shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor Owner Trustee, provided that such
co-trustee or successor trustee must be acceptable to the Rating Agencies and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) the Administrator, the Insurer and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein,
32
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of or affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator and
the Insurer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor co-trustee or separate trustee.
33
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Supplements and Amendments.
(a) This Agreement may be amended by the Depositor and the Owner
Trustee with the prior written consent of the Insurer so long as no Insurer
Default has occurred and is continuing and the Notes are outstanding, but
without the consent of any of the Noteholders or the Depositor, to cure any
ambiguity, to correct or supplement any provisions herein which may be
inconsistent with any of the provisions herein or make any other provisions with
respect to matters or questions arising hereunder that shall not be inconsistent
with the provisions of this Agreement; provided that (i) as evidenced by an
Officer's Certificate of the Depositor addressed and delivered to the Owner
Trustee any such action shall not materially and adversely affect the interests
of any Noteholder or the Depositor (unless the prior written consent of each
Noteholder and the Depositor affected thereby is obtained) and (ii) any such
action shall be deemed not to materially and adversely affect the interest of
any Noteholder or the Depositor if the Person requesting the amendment obtains
(A) a letter from each Rating Agency to the effect that the amendment would not
result in a downgrading or withdrawal of the ratings then assigned to the Notes
by such Rating Agency and (B) an opinion of counsel satisfactory to the Owner
Trustee and the Indenture Trustee to such effect.
(b) Subject to Section 11.14, this Agreement may also be amended
from time to time with the prior written consent of the Insurer by the Depositor
or the Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of for so long as the Notes are Outstanding, Noteholders representing
not less than 51% of the Outstanding Principal Amount acting together as a
single class (which consent of any Holder of a Note given pursuant to this
Section 11.01 or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such Note, as
the case may be, issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made thereon) provided
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 Contacts or
distributions that shall be required to be made for the benefit of the
Noteholders or the Depositor, (ii) reduce the aforesaid percentage of the
Outstanding Principal Amount of the Notes required to consent to any such
amendment, without
34
the consent of the Holders of all outstanding Notes affected thereby or (iii)
result in a taxable event to the holder of the Residual Interest Certificate for
federal income tax purposes or result in the trust being taxable as a
corporation for federal income tax purposes.
(c) Prior to the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee,
the Insurer, the Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Depositor. It shall not be necessary for the
consent of the Noteholders, the Depositor or the Indenture Trustee pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) In connection with the execution of any amendment to this
Agreement or any other Basic Document to which the Issuer is a party and for
which amendment the Owner Trustee's consent is sought, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Basic Documents and
that all conditions precedent in the Basic Documents for the execution and
delivery thereof by the Issuer or the Owner Trustee as the case may be, have
been satisfied. The Owner Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 11.02. No Legal Title to Trust Estate in Depositor. The
Depositor shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Depositor to and in its ownership interest in the Trust Estate shall operate
to terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Trust
Estate.
35
SECTION 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Insurer, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. Notices. All demands, notices and communications
under this Agreement shall be in writing personally delivered, sent by facsimile
or mailed by certified mail, return receipt requested, and shall be deemed to
have been duly given upon receipt in the case of (a) the Owner Trustee, at the
Owner Trustee Corporate Trust Office; (b) the Depositor, at AutoNation
Receivables Corporation, _________________________; (c) the Insurer, at
______________________; or (d) as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
SECTION 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Residual
Interest Certificate.
SECTION 11.06. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor, the Insurer, the Owner Trustee, and their respective successors and
permitted assigns and the Depositor and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Depositor shall bind the successors and assigns of the
Depositor.
36
SECTION 11.08. No Petition.
(a) The Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Residual
Interest Certificate, the Notes, this Agreement or any of the other Basic
Documents.
(b) The Owner Trustee, by entering into this Agreement, the
Depositor by accepting the Residual Interest Certificate, and the Indenture
Trustee and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Seller,
the Depositor or the Trust, or join in any institution against the Seller, the
Depositor or the Trust of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Residual Interest Certificate, the Notes, this Agreement or any
of the other Basic Documents.
SECTION 11.09. No Recourse. The Depositor by accepting the Residual
Interest Certificate acknowledges that the Residual Interest Certificate does
not represent an interest in or obligation of the Servicer, the Seller, the
Administrator, the Owner Trustee, the Indenture Trustee or any of their
respective Affiliates and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement
or the other Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
reference to its conflict of law provisions.
SECTION 11.12. Depositor Payment Obligation. The Depositor shall be
responsible for payment of the Administrator's compensation pursuant to Section
3 of the Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder; provided,
however, that such amounts shall not be payable from the Trust Estate or the
Trust Property, except for amounts payable to the Depositor pursuant to Section
4.03(a).
37
SECTION 11.13. Certain Matters Regarding the Insurer. So long as an
Insurer Default shall not have occurred and be continuing, the Insurer shall
have the right to exercise all rights, including voting rights, which the
Noteholders are entitled to exercise pursuant to this Agreement, without any
consent of such Noteholders; provided that without the consent of each
Noteholder affected thereby, the Insurer shall not exercise such rights to amend
this Agreement in any manner that would (i) reduce the amount of, or delay the
timing of, collections of payments on the Contracts or distributions which are
required to be made on any Note, (ii) adversely affect in any material respect
the interests of the Holders of any Notes, or (iii) alter the rights of any such
Holder to consent to such amendment.
Notwithstanding any provision in this Agreement to the contrary, in
the event an Insurer Default 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 Trust, the Depositor 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 a right to take action) to be taken by
the Trust, the Depositor, the Owner Trustee or the Holders of the Notes;
provided, that the consent of the Insurer shall be required at all times the
Notes are Outstanding and an Insurer Default has not occurred and is not
continuing with respect to any amendment of this Agreement.
SECTION 11.14. Fiduciary Duties. The duties and responsibilities of
the Owner Trustee shall be limited to those expressly provided for in this
Agreement. The parties hereto agree that except for the purpose of the foregoing
sentence, the Owner Trustee shall not have management responsibilities or owe
any fiduciary duties to the Insurer.
SECTION 11.15. Third Party Beneficiary. The parties hereto intend
for the Insurer to be, and the Insurer hereby is, an express third party
beneficiary of this Agreement, entitled to enforce all provisions hereof to the
same extent as if it were a party to this Agreement.
38
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Owner Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above
written.
AUTONATION RECEIVABLES
CORPORATION, as Depositor
By:
----------------------------------
Name:
Title:
------------------------------------,
not in its individual capacity, but
solely as Owner Trustee
By:
----------------------------------
Name:
Title:
39
EXHIBIT A
CERTIFICATE OF TRUST OF
ANRC AUTO OWNER TRUST _________
This Certificate of Trust of ANRC Auto Owner Trust __________ (the
"Trust") is being duly executed and filed by the undersigned, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3 801 et seq. (the "Act")).
1. Name. The name of the business trust formed hereby is ANRC Auto
Owner Trust ________________.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is ____________________, Attention: Corporate
Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective
__________________, _______________.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the
Act.
__________________________________________,
not in its individual capacity, but solely
as Owner Trustee
By:
----------------------------
Name:
Title:
A-1
EXHIBIT B
FORM OF RESIDUAL INTEREST CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO
THE EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT REFERRED TO HEREIN.
EACH HOLDER OF THIS CERTIFICATE OR ANY BENEFICIAL INTEREST THEREIN
SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT SUCH PERSON (1) IS NOT A
PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR
SECTION 4975 OF THE CODE OR A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUCH PERSON BEING
A "PLAN") AND (II) IS NOT AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR GENERAL ACCOUNT, WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF A PLAN'S INVESTMENT IN THE ENTITY.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
AUTONATION RECEIVABLES CORPORATION, AUTONATION FINANCIAL SERVICES CORP. OR ANY
OF THEIR RESPECTIVE AFFILIATES (PROVIDED THAT THIS CERTIFICATE DOES REPRESENT AN
INTEREST IN THE TRUST, AS DEFINED BELOW), AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION.
B-1
ANRC AUTO OWNER TRUST ________
RESIDUAL INTEREST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes, among other things, a pool of retail installment
sale contracts secured by new and used automobiles and light duty trucks sold to
the Trust by AutoNation Receivables Corporation.
NUMBER C-1 ____% Interest
THIS CERTIFIES THAT _______________ is the registered owner of a
____________ Dollars ($_________________) nonassessable, fully-paid, fractional
undivided residual interest in the ANRC Auto Owner Trust ____________ (the
"Trust") formed by AutoNation Receivables Corporation, a Delaware corporation
(together with its permitted successors and assigns in such capacity, the
"Depositor").
The Trust was created pursuant to a Trust Agreement, dated as of
_________, ____ (as amended, supplemented or otherwise modified and in effect
from time to time, the "Owner Trust Agreement"), between AutoNation Receivables
Corporation (the "Depositor") and __________________________________ as owner
trustee (together with its permitted successors and assigns in such capacity,
the "Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in, or incorporated by reference into,
the Owner Trust Agreement.
This Residual Interest Certificate is the duly authorized
Certificate evidencing a beneficial interest in the Trust (the "Residual
Interest Certificate"). Also issued by the Trust under that certain Indenture,
dated as of ___________, _____ (as amended, supplemented or otherwise modified
and in effect from time to time, the "Indenture"), between the Trust and
_________________________, as Indenture Trustee, are four classes of Notes
designated as "Class A-1 Notes", Class A-2 Notes", "Class A-3 Notes", and "Class
A-4 Notes" (collectively, the "Notes"). This Residual Interest Certificate is
issued under and is subject to the terms, provisions and conditions of the Owner
Trust Agreement, to which Owner Trust Agreement the Owner by virtue of its
acceptance hereof assents and by which such Owner is bound. The property of the
Trust includes, among other things, a pool of retail installment sale contracts
(the
B-2
"Contracts") for new and used automobiles and light duty trucks (the "Financed
Vehicles").
The holder of this Residual Interest Certificate acknowledges that
its rights to receive distributions in respect of this Residual Interest
Certificate are subordinated to the rights of the Noteholders to the extent
described in the Sale and Servicing Agreement and the Indenture.
Distributions will be made as provided in the Sale and Servicing
Agreement and only after the Notes have been paid in full.
It is the Intention of the Seller, the Servicer and the Depositor
that the Trust be disregarded as a separate entity and shall be treated as a
division of the Depositor and that none of the Seller, the Servicer or the
Depositor will take any action to the contrary.
The Depositor, by its acceptance of this Residual Interest
Certificate, covenants and agrees that it will not at any time institute against
the Trust or the Depositor, or join in any institution against the Trust or the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Residual Interest Certificate, the Notes, the Owner Trust Agreement or any
of the other Basic Documents.
Reference is hereby made to the further provisions of this Residual
Interest Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Residual Interest Certificate shall not entitle the holder hereof to any
benefit under the Owner Trust Agreement or any other Basic Document or be valid
for any purpose.
This Residual Interest Certificate shall be governed by, and
construed in accordance with, the laws of the State of Delaware without
reference to its conflict of laws provisions.
B-3
[REVERSE OF CERTIFICATE]
The Residual Interest Certificate does not represent an obligation
of, or an interest in, the Seller, the Depositor, the Servicer, the Owner
Trustee or any of their respective Affiliates and no recourse may be had against
such parties or their assets, except as expressly set forth or contemplated
herein or in the Owner Trust Agreement or the other Basic Documents. In
addition, this Residual Interest Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Contracts (and certain
other amounts), in each case as more specifically set forth herein and in the
Sale and Servicing Agreement. Copies of the Sale and Servicing Agreement and the
Owner Trust Agreement may be examined upon written request during normal
business hours at the principal office of the Depositor and at such other
places, if any, designated by the Depositor.
The Owner Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the parties thereto and the rights of the Owner under the Owner
Trust Agreement at any time by the parties thereto with the consent of the
Insurer and, for so long as the Notes are outstanding, Noteholders representing
not less than 51% of the Outstanding Principal Amount acting together as a
single class. The Owner Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Notes.
The Residual Interest Certificate (or any interest therein) may not
be sold, transferred, assigned, participated, pledged or otherwise disposed of
by the Depositor to any Person unless (i) the transfer is made pursuant to an
applicable exemption from registration under the Securities Act of 1933, as
amended, and in compliance with any applicable ERISA restrictions and (ii) prior
to such transfer, (A) an Opinion of Counsel in form and content acceptable to
the Owner Trustee and to the Indenture Trustee is delivered to the Owner Trustee
and to the Indenture Trustee stating, among other things, that such transfer
shall not cause the Trust to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes and (B)
and prior notice is given to each Rating Agency.
The Owner Trustee, the Paying Agent and any of their respective agents may
treat the Person in whose name this Residual Interest Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the Paying
Agent or any such agent shall be affected by any notice to the contrary.
B-4
The obligations and responsibilities created by the Owner Trust
Agreement and the Trust created thereby shall terminate upon the disposition of
all property held as part of the Trust Estate. The Servicer may at its option
purchase the Trust Property at a price specified in the Sale and Servicing
Agreement, and such purchase of the Contracts and other property of the Trust
will effect early retirement of the Notes; provided such right of purchase is
exercisable only as of any Distribution Date as of which the Pool Balance as of
such Distribution Date is less than or equal to 10% of the Original Pool
Balance.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Residual Interest Certificate to
be duly executed.
Dated: __________, ____ ANRC AUTO OWNER TRUST _____
By: _____________________, not in its
individual capacity but solely as
Owner Trustee
By:
-----------------------------------
Authorized Signatory
B-5
CERTIFICATE OF AUTHENTICATION
This is the Residual Interest Certificates referred to in the
within-mentioned Owner Trust Agreement.
______________________, not in its individual
capacity but solely as Owner Trustee
By:
--------------------------------
Authorized Signatory
B-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code,
of assignee)
--------------------------------------------------------------------------------
the within Residual Interest Certificate, and all rights thereunder, hereby
irrevocably constituting and
appointing ________________________________________________________________ to
transfer said Residual Interest Certificate with full power of substitution in
the premises.
Dated:
-----------------
Signature Guaranteed:
---------------------------- ---------------------------------------------
NOTICE: Signature(s) must be NOTICE: The signature to this assignment
guaranteed by an eligible must correspond with the name of the
guarantor institution. registered owner as it appears on the face of
the within Residual Interest Certificate in
every particular, without alteration or
enlargement or any change whatever.
B-7