EXHIBIT 4-CC
SERIES 1995-5 SUPPLEMENT dated as of November 30, 1995
(the "Series Supplement"), among U.S. AUTO RECEIVABLES
COMPANY, a Delaware corporation, as Seller, CHRYSLER CREDIT
CORPORATION, a Delaware corporation, as Servicer, and
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, as Trustee, and joined in by SOCIETE GENERALE,
Chicago Branch, as Agent (as defined herein).
Pursuant to the Pooling and Servicing Agreement dated as of May
31, 1991, as assigned by Chrysler Auto Receivables Company ("CARCO") to the
Seller on August 8, 1991 (as assigned, amended and supplemented, the
"Agreement"), among the Seller, the Servicer and the Trustee, CARCO has
created and assigned to the Seller the CARCO Auto Loan Master Trust (the
"Trust"). Section 6.03 of the Agreement provides that the Seller may from time
to time direct the Trustee to issue, on behalf of the Trust, one or more new
Series of Investor Certificates representing fractional undivided interests in
the Trust. The Principal Terms of any new Series are to be set forth in a
Supplement to the Agreement.
Pursuant to this Series Supplement, the Seller and the Trustee
shall create a new Series of Investor Certificates and specify the Principal
Terms thereof.
ARTICLE I
Creation of the Series 1995-5 Certificate
SECTION 1.01. Designation. (a) There is hereby created a
Series of Investor Certificates to be issued pursuant to the Agreement and
this Series Supplement to be known as the "Floating Rate Auto Loan Asset
Backed Certificates, Series 1995-5".
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
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ARTICLE II
Definitions
SECTION 2.01. Definitions. (a) Whenever used in this Series
Supplement the following words and phrases shall have the following
meanings:
"Additional Carry-Over Amount" shall have the meaning
specified in Section 4.02(b).
"Additional Interest" shall have the meaning specified in
Section 4.02(a).
"Adjusted Invested Amount" shall mean, with respect to Series
1995-5 for any Collection Period, an amount equal to the sum of (a) the
Initial Invested Amount of the Series 1995-5 Certificates on the Determination
Date occurring in such Collection Period, minus the excess, if any, of the
aggregate amount of Investor Charge-Offs for all Distribution Dates preceding
such date over the aggregate amount of any reimbursements of Investor
Charge-Offs for all Distribution Dates preceding such date and (b) the
applicable Available Subordinated Amount, if any, on the Determination Date
occurring in such Collection Period (in each case, after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date following the Determination Date during the Collection
Period in which such date occurs).
"Adjustment Date" shall mean the second London Business Day
preceding the first day of each Interest Period.
"Affected Party" means each of Barton, each Bank, any permitted
assignee of Barton or any Bank, each Enhancement Bank, any permitted assignee
of any Enhancement Bank and the Agent.
"Agent" means Societe Generale, Chicago Branch, in its
capacity as agent for Barton.
"Allocable Defaulted Amount" shall mean, with respect to any
Collection Period, the product of (a) the Series 1995-5 Allocation Percentage
with respect to such Collection Period and (b) the Defaulted Amount with
respect to such Collection Period.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Distribution Date, the product of (a) the Series 1995-5 Allocation Percentage
for the related Collection Period and (b) Miscellaneous Payments with respect
to the related Collection Period.
"Allocable Non-Principal Collections" shall mean, with respect to
any Deposit Date, the product of (a) the Series 1995-5 Allocation
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Percentage for the related Collection Period and (b) the aggregate amount of
Collections of Non-Principal Receivables relating to such Deposit Date.
"Allocable Principal Collections" shall mean, with respect to any
Deposit Date, the product of (a) the Series 1995-5 Allocation Percentage for
the related Collection Period and (b) the aggregate amount of Collections in
respect of Principal Receivables relating to such Deposit Date.
"Alternate Base Rate" means, on any date, a fluctuating rate
of interest per annum equal to the higher of
(a) the rate of interest most recently announced by Societe
Generale, at its principal office in New York, New York, as its
reference rate; and
(b) the Federal Funds Rate (as defined below) most recently
determined by Societe Generale, plus 1% per annum.
For purposes of this definition, "Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal (for each day during such period) to
(i) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York; or
(ii) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Societe Generale, from three federal
funds brokers of recognized standing selected by it.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by Societe Generale in connection with extensions of
credit.
"Assets Receivables Rate" shall mean, with respect to any Interest
Period, an amount equal to the product of (a) the quotient obtained by
dividing (i) 360 by (ii) the actual number of days elapsed in such Interest
Period and (b) a percentage, expressed as a fraction, (i) the numerator of
which is the sum of (A) Investor Non-Principal Collections for the Collection
Period immediately preceding the last day of such Interest Period (which, for
the purposes of this definition only, shall be determined based on the
interest amounts billed to the Dealers which are due during such Collection
Period) less, unless the Monthly Servicing Fee has been waived by the
Servicer, the Certificateholders' Monthly Servicing Fee with respect to such
immediately preceding Collection Period and (B) the
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Investment Proceeds to be applied on the Distribution Date related to such
Interest Period and (ii) the denominator of which is the sum of (A) the
product of (I) the Series 1995-5 Floating Allocation Percentage, (II) the
Series 1995-5 Series Allocation Percentage and (III) the average Pool Balance
(after giving effect to charge-offs) for such immediately preceding Collection
Period, (B) the principal balance on deposit in the Excess Funding Account on
the first day of such Interest Period (after giving effect to all deposits to
and withdrawals therefrom on such first day) and (C) the principal balance on
deposit in the Principal Funding Account on the first day of such Interest
Period (after giving effect to all deposits to and withdrawals therefrom on
such first day).
"Automatic Additional Accounts" shall have the meaning
specified in Section 11.01(e).
"Automatic Removed Accounts" shall have the meaning
specified in Section 11.01(c).
"Automatic Removal Date" shall have the meaning specified in
Section 11.01(c).
"Available Investor Principal Collections" shall mean, with
respect to any Distribution Date, the sum of (a) an amount equal to Investor
Principal Collections for such Distribution Date, (b) Allocable Miscellaneous
Payments with respect to such Distribution Date, (c) Series 1995-5 Excess
Principal Collections on deposit in the Collection Account for such
Distribution Date and (d) on the Termination Date, any funds in the Reserve
Fund after giving effect to Section 4.08, except for Section 4.08(d).
"Available Seller's Collections" shall mean, with respect to any
Deposit Date, the sum of (a) the Available Seller's Non-Principal Collections
for such Deposit Date and (b) the Available Seller's Principal Collections for
such Deposit Date; provided, however, that the Available Seller's Collections
shall be zero for any Collection Period with respect to which the Available
Subordinated Amount is zero on the Determination Date immediately following
the end of such Collection Period.
"Available Seller's Non-Principal Collections" shall mean, with
respect to any Deposit Date, an amount equal to the result obtained by
multiplying (a) the excess of (i) the Seller's Percentage for the related
Collection Period over (ii) the Excess Seller's Percentage for such Collection
Period by (b) Allocable Non-Principal Collections for such Deposit Date.
"Available Seller's Principal Collections" shall mean, with
respect to any Deposit Date, an amount equal to the result obtained by
multiplying (a) the excess of (i) the Seller's Percentage for the related
Collection Period over (ii) the Excess Seller's Percentage for such
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Collection Period by (b) Allocable Principal Collections for such Deposit
Date.
"Available Subordinated Amount" for the first Determination Date
shall mean an amount equal to the Required Subordinated Amount. The Available
Subordinated Amount for any subsequent Determination Date shall mean an amount
equal to (a) the lesser of (i) the Available Subordinated Amount for the
preceding Determination Date, minus (A) the Required Subordination Draw Amount
with respect to the preceding Distribution Date to the extent provided in
Section 4.08, minus (B) withdrawals from the Reserve Fund pursuant to Section
4.08 on the preceding Distribution Date to make distributions pursuant to
Section 4.06(a)(iv) (but excluding any other withdrawals from the Reserve
Fund), plus (C) the portion of Excess Servicing for such preceding
Distribution Date distributed to the Seller pursuant to Section 4.10(e), plus
(D) the excess, if any, of the Required Subordinated Amount for such
Determination Date over the Required Subordinated Amount for the immediately
preceding Distribution Date due to an increase in the Subordination Factor and
(ii) the product of the fractional equivalent of the Subordinated Percentage
and the Invested Amount on such Determination Date, minus (b) in the case of
clause (a)(i), the Incremental Subordinated Amount for such preceding
Determination Date, plus (c) the Incremental Subordinated Amount for the
current Determination Date, plus (d) the Subordinated Percentage of funds to
be withdrawn from the Excess Funding Account on the succeeding Distribution
Date and paid to the Seller or allocated to one or more Series; provided,
however, that the Available Subordinated Amount may be increased on any
Determination Date by the Seller, in its sole discretion, by notice to the
Trustee on or before such Determination Date, so long as the cumulative amount
of such increases does not exceed the lesser of (x) $2,775,000 or (y) 1.11% of
the Invested Amount on such date; provided, however, that, once the Controlled
Amortization Period or any Early Amortization Period (other than an Early
Amortization Period which has ended as described in clause (c) or clause (d)
of the definition thereof in this Series Supplement) shall have commenced, the
Available Subordinated Amount shall be calculated based on the Invested Amount
as of the close of business on the day preceding such Controlled Amortization
Period or Early Amortization Period.
"Bank" means any one of, and "Banks" means all of, Societe
Generale, and the other commercial lending institutions that are at any time
parties to the Stand-by Purchase Facility.
"Bank Rate" for any Yield Period for the related Tranche means an
interest rate per annum equal to the sum of (a) .50% per annum, plus (b) LIBOR
for such Yield Period; provided, however, that, if (i) it shall become
unlawful for the Agent, any Bank or any Enhancement Bank to obtain funds in
the London interbank eurodollar market in order to maintain any Tranche, or if
such funds shall not be reasonably available to the Agent, any Bank or any
Enhancement Bank, or (ii) there shall not be time prior to the commencement of
an applicable Yield Period to determine LIBOR
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in accordance with its terms, then the "Bank Rate" for such Yield Period and
such Tranche shall be equal to the Alternate Base Rate for such Yield Period.
"Barton" means Barton Capital Corporation, a Delaware
corporation.
"Barton Rate" for any Yield Period for any related Tranche (or
portion thereof) means:
(a) in the case of the Investment Amount of a Tranche (or portion
thereof) other than one referred to in clause (b) or the proviso to this
definition, the Commercial Paper Rate for such Tranche (or such portion)
for such Yield Period; and
(b) in the case of the Investment Amount of a Tranche (or portion
thereof) (i) funded pursuant to the Stand-by Purchase Facility, (ii)
funded by a Credit Advance or (iii) owned by a Person other than Barton,
in any such case if, at the time in question, no Early Amortization
Event has occurred, other than an Early Amortization Event which has
resulted in an Early Amortization Period which has ended as described in
clause (c) or clause (d) of the definition thereof in this Series
Supplement, the Bank Rate for such Tranche (or such portion) for such
Yield Period;
provided, however, that, if an Early Amortization Event has occurred, other
than an Early Amortization Event which has resulted in an Early Amortization
Period which has ended as described in clause (c) or clause (d) of the
definition thereof in this Series Supplement, the Barton Rate for the
Investment Amount of each Tranche shall be a rate per annum for each day
during the related Early Amortization Period equal to the Alternate Base Rate
in effect on such day plus 2% per annum. Barton intends to finance its
investment in the Series 1995-5 Certificate through the issuance of Commercial
Paper Notes; Tranches will be funded pursuant to the Stand-by Purchase
Facility or by a Credit Advance only if Barton is unable to issue Commercial
Paper Notes with a maturity on appropriate Settlement Dates.
"Calculation Agent" shall mean the Agent or any other Calculation
Agent selected by the Agent.
"Carry-over Amount" shall mean, for any Distribution Date with
respect to which the related Certificate Rate is calculated on the basis of
the Asset Receivables Rate, the excess of (a) Monthly Interest for such
Distribution Date determined as if such Certificate Rate were calculated on
the basis of the formula set forth in clause (a) of the definition of
Certificate Rate over (b) the actual Monthly Interest for such Distribution
Date.
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"Carry-over Shortfall" shall have the meaning specified in
Section 4.02(b).
"Certificate Rate" shall mean, with respect to any Interest
Period, the lesser of (a) the sum of (i) the Pass-Through Rate for such
Interest Period and (ii) the Program Fee Rate for such Interest Period, and
(b) the Asset Receivables Rate for the immediately preceding Interest Period.
"Certificateholders' Monthly Servicing Fee" shall have the
meaning specified in Section 3.01.
"Closing Date" shall mean December 20, 1995.
"Collateral Agent" means Societe Generale, in its capacity as
collateral agent under the Security Agreement, dated as of December 6, 1991,
as amended, between Societe Generale and Barton.
"Commercial Paper Notes" means short-term promissory notes issued
or to be issued by Barton to fund its investments in accounts receivable or
other financial assets, including the Series 1995-5 Certificates.
"Commercial Paper Rate" for any Yield Period for the related
Tranche means a rate per annum equal to the sum of (a) the rate or, if more
than one rate, the weighted average of the rates, determined by converting to
an interest-bearing equivalent rate per annum the discount rate (or rates) at
which Commercial Paper Notes having a term equal to such Yield Period and to
be issued to fund the purchase of the Series 1995-5 Certificates or to
maintain an investment in Series 1995-5 Certificates by Barton may be sold by
any placement agent or commercial paper dealer selected by the Agent, plus (b)
the commissions and charges charged by such placement agent or commercial
paper dealer with respect to such Commercial Paper Notes expressed as a
percentage of such face amount and converted to an interest-bearing equivalent
rate per annum (it being understood that the amount of such commissions and
charges will be the same as those charged to Barton with respect to all of the
Commercial Paper Notes issued by Barton to fund its investments).
"Controlled Amortization Amount" shall mean an amount equal to the
Invested Amount as of the August 1999 Distribution Date (after giving effect
to any changes therein on such date), divided by the Controlled Amortization
Period Length.
"Controlled Amortization Period" shall mean, unless an Early
Amortization Event shall have occurred prior thereto (other than an Early
Amortization Event which has resulted in an Early Amortization Period which
has ended as described in clause (c) or clause (d) of the definition thereof
in this Series Supplement), the period commencing on the Controlled
Amortization Period Commencement Date and ending upon the
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first to occur of (a) the commencement of an Early Amortization Period (other
than an Early Amortization Period which has ended as described in clause (c)
or clause (d) of the definition thereof in this Series Supplement) and (b) the
payment in full to the Series 1995-5 Certificateholders of the outstanding
principal amount of the Series 1995-5 Certificates.
"Controlled Amortization Period Commencement Date" shall mean the
first day of the Collection Period upon which the number of full Collection
Periods remaining until the Expected Final Payment Date first equals the
Controlled Amortization Period Length; provided however, that, if at any time
after the August 1999 Distribution Date, any other outstanding Series (other
than any Excluded Series) shall have entered into a reinvestment period or an
early amortization period, the Controlled Amortization Period Commencement
Date shall be the earlier of (i) the date that such outstanding Series shall
have entered into its reinvestment period or early amortization period and
(ii) the Controlled Amortization Period Commencement Date as previously
determined. If the Controlled Amortization Period Length is one month, two
months, three months, four months or five months, the Controlled Amortization
Period Commencement Date shall mean the first day of the January 2000
Collection Period, the December 1999 Collection Period, the November 1999
Collection Period, the October 1999 Collection Period or the September
1999 Collection Period, respectively.
"Controlled Amortization Period Length" shall mean a period which
is one, two, three, four or five month(s) long and is calculated as of the
August 1999 Distribution Date and each Distribution Date thereafter that
occurs prior to the Controlled Amortization Period Commencement Date, as the
lesser of (i) the number of full Collection Periods between such Distribution
Date and the Expected Final Payment Date and (ii) the product, rounded upwards
to the nearest integer not greater than five, of (a) one divided by the lowest
Monthly Payment Rate during the last 12 months and (b) a fraction, the
numerator of which is the sum of (i) the Invested Amount as of such
Distribution Date (after giving effect to all changes therein on such date)
and (ii) the invested amounts of all other Series (other than any Excluded
Series) currently in their amortization or accumulation periods or scheduled
to be in their amortization or accumulation periods by the Expected Final
Payment Date as of such Distribution Date (after giving effect to all changes
therein on such date) and the denominator of which is the sum of such Invested
Amount and the invested amounts as of such Distribution Date (after giving
effect to all changes therein on such date) of all other outstanding Series
(other than any Excluded Series) which are scheduled to be outstanding on the
Expected Final Payment Date.
"Controlled Distribution Amount" shall mean, with respect to any
Distribution Date, the excess, if any, of (a) the sum of (i) the product of
the Controlled Amortization Amount and the number of Distribution Dates from
and including the first Distribution Date with respect to the Controlled
Amortization Period through and including such Distribution
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Date (but not in excess of the Controlled Amortization Period Length) and (ii)
the amount on deposit in the Excess Funding Account as of the August 1999
Distribution Date (after giving effect to any withdrawals from or deposits to
such account on such date (other than the transfer to the Principal Funding
Account of the amounts on deposit therein on such date)), over (b) the sum of
amounts on deposit in the Excess Funding Account and the Principal Funding
Account, in each case before giving effect to any withdrawals from or deposits
to such accounts on such Distribution Date.
"Controlled Principal Payment Amount" shall mean, with respect to
any Distribution Date, the sum of (a) the quotient obtained by dividing (i)
the principal balance of the Series 1995-5 Certificates as of the August
1999 Distribution Date minus the excess, if any, of the aggregate amount of
Investor Charge-Offs for such distribution date and all prior Distribution
Dates over the aggregate amount of any reimbursements of Investor Charge-Offs
for such Distribution Date and all prior Distribution Dates by (ii) the
Controlled Amortization Period Length and (b) the amount of any Controlled
Principal Payment Amount for any prior Distribution Date that was not
distributed to the Series 1995-5 Certificateholders on such prior or another
Distribution Date.
"Credit Advance" means a drawing under a letter of credit issued
pursuant to the Enhancement Agreement for the account of Barton, a loan to
Barton under the Enhancement Agreement or any other advance or disbursement of
funds to Barton or for Barton's account pursuant to the Enhancement Agreement
or any such letter of credit, in each case to the extent such drawing, loan,
advance or disbursement has not been repaid or reimbursed to the applicable
Enhancement Bank in accordance with the Enhancement Agreement.
"Deficiency Amount" shall have the meaning specified in
Section 4.05.
"Early Amortization Event" shall mean any Early Amortization Event
specified in Section 9.01 of the Agreement, together with any additional Early
Amortization Event specified in Section 6.01 of this Series Supplement.
"Early Amortization Period" shall mean a period beginning on the
day on which an Early Amortization Event specified in Section 9.01 of the
Agreement or Section 6.01 of this Series Supplement shall have occurred with
respect to Series 1995-5 and terminating on the earliest of (a) the payment in
full of the outstanding principal balance of the Series 1995-5 Certificates;
(b) the Termination Date; (c) if such Early Amortization Period has resulted
from the occurrence of an Early Amortization Event described in Section
9.01(a) of the Agreement, the end of the first Collection Period during which
an Early Amortization Event would no longer be deemed to exist pursuant to
such Section 9.01(a), so long as no other Early Amortization Event (other than
an Early Amortization
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Event which has resulted in an Early Amortization Period which has terminated
as described in this clause (c) or clause (d) below) shall have occurred and
the scheduled termination of the Revolving Period shall not have occurred; and
(d) if such Early Amortization Period has resulted from the occurrence of an
Early Amortization Event described in Sections 9.01(a), (f) or (g) of the
Agreement or Section 6.01, other than Section 6.01(f), (g) or (h), of this
Series Supplement, the end of the first Collection Period after which (i) the
Trustee has received written confirmation from Standard & Poor's that
termination of such Early Amortization Period will not result in the
downgrading or withdrawal of such entity's rating of the Series 1995-5
Certificates, and (ii) Series 1995-5 Certificateholders holding Series 1995-5
Certificates evidencing more than 50% of the aggregate unpaid principal amount
of the Series 1995-5 Certificates shall have consented to the termination of
such Early Amortization Period, provided that (X) no other Early Amortization
Event (other than an Early Amortization Event which has resulted in an Early
Amortization Period which has terminated as described in this clause (d) or
clause (c) above, shall have occurred, and (Y) the scheduled termination of
the Revolving Period shall not have occurred.
"Earned Return" means with respect to any Yield Period for
any Tranche:
BR x I x AD
---
360
where:
BR = Barton Rate applicable to such Tranche;
I = Investment Amount related to such Tranche; and
AD = the actual number of days in such Yield Period;
provided, however, that no provision of this Series Supplement shall require
the payment or permit the collection of Earned Return in excess of the maximum
rate permitted by applicable law.
"Eligible Investments" shall mean (a) book-entry securities,
negotiable instruments or securities represented by instruments in bearer or
registered form having original or remaining maturities of 30 days or less
(unless each Rating Agency confirms in writing that a longer maturity will not
result in the downgrade or withdrawal of such Rating Agency's rating of the
Series 1995-5 Certificates), but in no event occurring later than the
Distribution Date next succeeding the Trustee's acquisition thereof (unless
each Rating Agency confirms in writing that a longer maturity will not result
in the downgrade or withdrawal of such Rating Agency's rating of the Series
1995-5 Certificates), which evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
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(ii) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws
of the United States of America or any state thereof (or any domestic
branch of a foreign bank) and subject to supervision and examination by
Federal or state banking or depository institution authorities;
provided, however, that at the time of the Trust's investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a person or entity other than
such depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies in the highest investment
category granted thereby;
(iii) commercial paper having, at the time of the Trust's
investment or contractual commitment to invest therein, a rating from
each of the Rating Agencies in the highest investment category granted
thereby;
(iv) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted
thereby or otherwise approved in writing thereby;
(v) bankers' acceptances issued by any depository institution
or trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii); and
(vii) repurchase obligations with respect to any security or whole
loan entered into with (i) a depository institution or trust company
(acting as principal) described in clause (ii) above (except that the
rating referred to in the proviso in such clause (ii) shall be A-1 or
higher in the case of Standard & Poor's) (such depository institution or
trust company being referred to in this definition as a "Financial
Institution"), (ii) a broker/dealer (acting as principal) registered as
a broker or dealer under Section 15 of the Securities Exchange Act of
1934, as amended (a "Broker/Dealer"), the unsecured short-term debt
obligations of which are rated P-1 by Moody's and at least A-1 by
Standard & Poor's at the time of entering into such repurchase
obligation (a "Rated Broker/Dealer"), (iii) an unrated Broker/Dealer (an
"Unrated Broker/Dealer"), acting as principal, that is a wholly owned
subsidiary of a nonbank holding company the unsecured short-term debt
obligations of which are rated P-1 by Moody's and at least A-1 by
Standard & Poor's at the time of entering into such repurchase
obligation (a "Rated Holding Company") or (iv) an unrated subsidiary (a
"Guaranteed
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Counterparty"), acting as principal, that is a wholly owned subsidiary
of a direct or indirect parent Rated Holding Company, which guarantees
such subsidiary's obligations under such repurchase agreement; provided
that the following conditions are satisfied:
(A) the aggregate amount of funds invested in repurchase
obligations of a Financial Institution, a Rated Broker/Dealer, an
Unrated Broker/Dealer or Guaranteed Counterparty in respect of
which the Standard & Poor's unsecured short-term ratings are A-1
(in the case of an Unrated Broker/Dealer or Guaranteed
Counterparty, such rating being that of the related Rated Holding
Company) shall not exceed 20% of the sum of the then outstanding
principal balance of Series 1995-5 Certificates (there being no
limit on the amount of funds that may be invested in repurchase
obligations in respect of which such Standard & Poor's rating is
A-1+ (in the case of an Unrated Broker/Dealer or Guaranteed
Counterparty, such rating being that of the related Rated Holding
Company));
(B) in the case of any Series 1995-5 Account (other than the
Collection Account and the Yield Supplement Account), the rating
from Standard & Poor's in respect of the unsecured short-term debt
obligations of the Financial Institution, Rated Broker/Dealer,
Unrated Broker/Dealer or Guaranteed Counterparty (in the case of
an Unrated Broker/Dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company) shall be A-1+;
(C) the repurchase obligation must mature within 30 days of
the date on which the Trustee enters into such repurchase
obligation;
(D) the repurchase obligation shall not be subordinated to
any other obligation of the related Financial Institution, Rated
Broker/Dealer Unrated Broker/Dealer or Guaranteed
Counterparty;
(E) the collateral subject to the repurchase obligation is
held, in the appropriate form, by a custodial bank on behalf of
the Trustee;
(F) the repurchase obligation shall require that the
collateral subject thereto shall be marked to market daily;
(G) in the case of a repurchase obligation of a Guaranteed
Counterparty, the following conditions shall also be satisfied:
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(i) the Trustee shall have received an opinion of
counsel (which may be in-house counsel) to the effect that
the guarantee of the related Rated Holding Company is a
legal, valid and binding agreement of the Rated Holding
Company, enforceable in accordance with its terms, subject
as to enforceability to bankruptcy, insolvency,
reorganization and moratorium or other similar laws
affecting creditors' rights generally and to general
equitable principles;
(ii) the Trustee shall have received (x) an incumbency
certificate for the signer of such guarantee, certified by
an officer of such Rated Holding Company, and (y) a
resolution, certified by an officer of the Rated Holding
Company, of the board of directors (or applicable committee
thereof) of the Rated Holding Company authorizing the
execution, delivery and performance of such guarantee by the
Rated Holding Company;
(iii) the only conditions to the obligation of such
Rated Holding Company to pay on behalf of the Guaranteed
Counterparty shall be that the Guaranteed Counterparty shall
not have paid under such repurchase obligation when required
(it being understood that no notice to, demand on or other
action in respect of the Guaranteed Counterparty is
necessary) and that the Trustee shall make a demand on the
Rated Holding Company to make the payment due under such
guarantee;
(iv) the guarantee of the Rated Holding Company shall
be irrevocable with respect to such repurchase obligation
and shall not be subordinate to other obligations of the
Rated Holding Company; and
(v) each of Standard & Poor's and Moody's has
confirmed in writing to the Trustee that it has reviewed the
form of the guarantee of the Rated Holding Company and has
determined that the Trust's investment in such repurchase
obligation, taking into account the issuance of such
guarantee, will not result in the downgrade or withdrawal of
the ratings assigned to the Series 1995-5 Certificates; and
(H) the repurchase obligations shall require that the
repurchase obligation be over-collateralized and shall provide
that, upon any failure to maintain such overcollateralization, the
repurchase obligation shall become due and payable, and unless the
repurchase obligation is satisfied immediately, the
14
collateral subject to the repurchase agreement shall be
liquidated and the proceeds applied to satisfy the unsatisfied
portion of the repurchase obligation; and
(b) any other investment consisting of a financial asset that by
its terms converts to cash within a finite period of time; provided that each
Rating Agency shall have notified the Seller, the Servicer and the Trustee
that the Trust's investment therein will not result in a reduction or
withdrawal of the rating of any outstanding class or Series with respect to
which it is a Rating Agency.
"Enhancement Agreement" means and includes (a) the Enhancement
Agreement, dated as of December 6, 1991, between Barton and Societe Generale,
and (b) any other agreement (other than the Standby Purchase Facility)
hereafter entered into by Barton providing for the issuance of one or more
letters of credit for the account of Barton, the making of loans to Barton or
any other extensions of credit to or for the account of Barton to support all
or any part of Barton's payment obligations under its Commercial Paper Notes
or to provide an alternate means of funding Barton's investments in accounts
receivable or other financial assets, including the Series 1995-5
Certificates, in each case as amended, supplemented or otherwise modified from
time to time.
"Enhancement Bank" means and includes Societe Generale, as lender
to Barton and as issuer of a letter of credit for Barton's account, under the
Enhancement Agreement, and any other or additional bank or other financial
institution now or hereafter extending credit or having a commitment to extend
credit to or for the account of Barton under the Enhancement Agreement.
"Excess Reserve Fund Required Amount" shall mean, for any
Distribution Date with respect to an Early Amortization Period, an amount
equal to the greater of (a) 5% of the initial principal balance of the Series
1995-5 Certificates and (b) the excess of (i) the sum of (x) the Available
Subordinated Amount on the preceding Determination Date (after giving effect
to the allocations, distributions, withdrawals and deposits to be made on such
Distribution Date) and (y) an amount equal to (A) the excess of the Required
Participation Percentage over 100%, multiplied by (B) the outstanding
principal balance of the Series 1995-5 Certificates on such Distribution Date
(after giving effect to any changes therein on such Distribution Date) over
(ii) the excess of (x) the Series 1995-5 Allocation Percentage of the Pool
Balance on the last day of the immediately preceding Collection Period over
(y) the Invested Amount on such Distribution Date (after giving effect to
changes therein on such Distribution Date); provided that the Excess Reserve
Fund Required Amount shall not exceed such Available Subordinated Amount.
"Excess Seller's Percentage" shall mean, with respect to any
Collection Period, a percentage (which percentage shall never be less than 0%
nor more than 100%) equal to (a) 100% minus, when used with respect to
15
Non-Principal Receivables, Defaulted Receivables and Principal Receivables
during the Revolving Period, the sum of (i) the Floating Allocation Percentage
with respect to such Collection Period and (ii) the percentage equivalent of a
fraction, the numerator of which is the Available Subordinated Amount as of
the Determination Date occurring in such Collection Period (after giving
effect to the allocations, distributions, withdrawals and deposits to be made
on the Distribution Date immediately following such Determination Date) and
the denominator of which is the product of (x) the Pool Balance as of the last
day of such immediately preceding Collection Period and (y) the Series 1995-5
Allocation Percentage for the Collection Period in respect of which the Excess
Seller's Percentage is being calculated or (b) 100% minus, when used with
respect to Principal Receivables during the Controlled Amortization Period and
an Early Amortization Period, the sum of (i) the Principal Allocation
Percentage with respect to such Collection Period and (ii) the percentage
equivalent of a fraction, the numerator of which is the Available Subordinated
Amount as of the Determination Date occurring in such Collection Period (after
giving effect to the allocations, distributions, withdrawals and deposits to
be made on the Distribution Date immediately following such Determination
Date) and the denominator of which is the product of (x) the Pool Balance as
of the last day of such immediately preceding Collection Period and (y) the
Series 1995-5 Allocation Percentage for the Collection Period in respect of
which the Excess Seller's Percentage is being calculated.
"Excess Servicing" shall mean, with respect to any Distribution
Date, the the amount, if any, specified pursuant to Section 4.06(a)(vii) with
respect to such Distribution Date.
"Expected Final Payment Date" shall mean the February 2000
Distribution Date.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto or to the functions thereof.
"Final Payment Date" means the first Distribution Date on which,
after giving effect to all payments to be made on that Distribution Date, the
outstanding principal amount of the Series 1995-5 Certificates will be paid in
full.
"Floating Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as
of the last day of the immediately preceding Collection Period and the
denominator of which is the product of (a) the Pool Balance as of such last
day and (b) the Series 1995-5 Allocation Percentage for the Collection Period
in respect of which the Floating Allocation Percentage is being calculated;
provided, however, that, with respect to the December 1995 Collection Period,
the Floating Allocation Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the Initial
16
Invested Amount on the Closing Date and the denominator of which is the
product of (x) the Pool Balance on the Series Cut-Off Date and (y) the Series
1995-5 Allocation Percentage with respect to the Series Cut-Off Date.
"Incremental Subordinated Amount" shall mean, with respect to any
Determination Date, the result obtained by multiplying (a) a fraction, the
numerator of which is the sum of (i) (A) the Invested Amount on the last day
of the immediately preceding Collection Period or (B) with respect to the
first Determination Date, the Invested Amount on the Closing Date and (ii) (A)
the Available Subordinated Amount for such Determination Date (calculated
without adding the Incremental Subordinated Amount for such Distribution Date
as described in clause (c) of the definition thereof) or (B) with respect to
the first Determination Date, the product of the Invested Amount on the
Closing Date and the Subordinated Percentage and the denominator of which is
the Pool Balance on such last day by (b) the Trust Incremental Subordinated
Amount.
"Initial Distribution Date" shall mean the January 1996
Distribution Date.
"Initial Invested Amount" shall mean the portion of initial
principal amount of the Series 1995-5 Certificates which is invested in
Principal Receivables on the Closing Date, which is $250,000,000, plus (a) the
amount of any withdrawals from the Excess Funding Account in connection with
the purchase of an additional interest in Principal Receivables of the Trust,
minus (b) the amount of any additions to the Excess Funding Account in
connection with a reduction in the Principal Receivables in the Trust or an
increase in the Subordination Factor.
"Initial Principal Amount" shall mean $250,000,000.
"Initial Reserve Fund Deposit Amount" shall mean $1,000,000.
"Initial Yield Supplement Account Deposit Amount" shall mean
$625,000.
"Interest Period" shall mean, with respect to any Distribution
Date, the period from and including the Distribution Date immediately
preceding such Distribution Date to but excluding such Distribution Date (or,
in the case of the Initial Distribution Date, the period from and including
the Closing Date to but excluding the Initial Distribution Date).
"Interest Shortfall" shall have the meaning specified in
Section 4.02.
"Invested Amount" shall mean, when used with respect to any date,
an amount equal to (a) the Initial Invested Amount, minus (b) the amount,
without duplication, of principal payments (except principal payments made
from the Excess Funding Account and any transfers from
17
the Excess Funding Account to the Principal Funding Account) made to Series
1995-5 Certificateholders or deposited to the Principal Funding Account prior
to such date, minus (c) the excess, if any, of the aggregate amount of
Investor Charge-Offs over Investor Charge-Offs reimbursed pursuant to Section
4.09 prior to such date. In addition, for purposes of the definition of "Early
Amortization Period", the Invested Amount shall be an amount equal to the
outstanding principal amount of the Series 1995-5 Certificates.
"Investment Amount" shall have the meaning specified in
Section 4.14.
"Investment Proceeds" shall mean, with respect to any
Determination Date, all interest and other investment earnings (net of losses
and investment expenses) on funds on deposit in the Series 1995-5 Accounts,
together with an amount equal to the Series 1995-5 Allocation Percentage of
the interest and other investment earnings on funds held in the Collection
Account credited to the Collection Account pursuant to Section 4.02 of the
Agreement.
"Investor Charge-Offs" shall have the meaning specified in
Section 4.09.
"Investor Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Allocable
Defaulted Amount for the related Collection Period and (b) the Floating
Allocation Percentage for the related Collection Period.
"Investor Non-Principal Collections" shall mean, with respect to
any Distribution Date, an amount equal to the product of (a) the Floating
Allocation Percentage for the related Collection Period and (b) Allocable
Non-Principal Collections deposited in the Collection Account for the related
Collection Period.
"Investor Principal Collections" shall mean, with respect to any
Distribution Date, the sum of (a) the product of (i) the Floating Allocation
Percentage, with respect to the Revolving Period, or the Principal Allocation
Percentage, with respect to the Controlled Amortization Period or an Early
Amortization Period for the related Collection Period (or any partial
Collection Period which occurs as the first Collection Period during an Early
Amortization Period) and (ii) Allocable Principal Collections deposited in the
Collection Account for the related Collection Period (or any partial
Collection Period which occurs as the first Collection Period during an Early
Amortization Period) and (b) the amount, if any, of Collections of
Non-Principal Receivables, Excess Servicing and Available Seller's Collections
to be distributed pursuant to Section 4.06(a)(iv), 4.08(b) or 4.10(a) on such
Distribution Date.
"LIBOR" shall mean, with respect to any Yield Period, the offered
rates for deposits in United States dollars having a maturity of one
18
month (the "Index Maturity") commencing on the related Adjustment Date which
appear on the Telerate Page 3750 as of approximately 11:00 a.m., London
time, on such date of calculation. If at least two such offered rates appear
on the Telerate Page 3750, LIBOR will be the arithmetic mean (rounded,
if necessary, to the nearest one-hundred thousandth of a percent (.0000001),
with five one-millionths of a percentage point rounded upward) of such offered
rates. If fewer than two such quotations appear, LIBOR with respect to such
Yield Period will be determined at approximately 11:00 a.m., London time, on
such Adjustment Date on the basis of the rate at which deposits in United
States dollars having the Index Maturity are offered to prime banks in the
London interbank market by four major banks in the London interbank market
selected by the Calculation Agent and in a principal amount equal to an amount
of not less than U.S. $1,000,000 and that is representative for a single
transaction in such market at such time. The Calculation Agent will request
the principal London office of each of such banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR will be the
arithmetic mean (rounded as aforesaid) of such quotations. If fewer than two
quotations are provided, LIBOR with respect to such Yield Period will be the
arithmetic mean (rounded as aforesaid) of the rates quoted at approximately
11:00 a.m., New York City time, on such Adjustment Date by three major banks
in New York, New York, selected by the Calculation Agent for loans in United
States dollars to leading European banks having the Index Maturity and in a
principal amount equal to an amount of not less than U.S. $1,000,000 and that
is representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid are not quoting as
mentioned in this sentence, LIBOR in effect for the applicable period will be
LIBOR in effect for the previous period. For purposes of this definition,
"Telerate Page 3750" means the display page currently so designated on the
Dow Jones Telerate Service (or such other page as may replace that page on
that service for the purpose of displaying comparable rates or prices).
"London Business Day" shall mean any business day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
"Monthly Interest" shall have the meaning specified in
Section 4.02(a).
"Monthly Payment Rate" shall mean, for any Collection Period, the
percentage derived from dividing the Principal Collections for such Collection
Period by the average daily Pool Balance for such Collection Period.
"Monthly Principal" shall have the meaning specified in
Section 4.03.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.01.
19
"Pass-Through Rate" means, for any Interest Period, a rate
per annum equal to the weighted average of the Barton Rates applicable to
all Tranches of the outstanding principal balance of the Series 1995-5
Certificates for such Interest Period.
"Pool Factor" shall mean, with respect to any Determination Date,
a number carried out to 11 decimals representing the ratio of the Invested
Amount as of such Determination Date (determined after taking into account any
increases or decreases in the Invested Amount which will occur on the
following Distribution Date) to the Initial Invested Amount.
"Principal Allocation Percentage" shall mean, with respect to any
Collection Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as
of the last day of the Revolving Period and the denominator of which is the
product of (a) the Pool Balance as of the last day of the immediately
preceding Collection Period and (b) the Series 1995-5 Allocation Percentage
with respect to the Collection Period in respect of which the Principal
Allocation Percentage is being calculated; provided, however, that, with
respect to that portion of any Collection Period that falls after the date on
which any Early Amortization Event occurs (other than an Early Amortization
Event which has resulted in an Early Amortization Period which has ended as
described in clause (c) or clause (d) of the definition thereof in this Series
Supplement), the Principal Allocation Percentage shall be reset using the Pool
Balance as of the close of business on the date on which such Early
Amortization Event shall have occurred and Principal Collections shall be
allocated for such portion of such Collection Period using such reset
Principal Allocation Percentage.
"Program Fee" means with respect to any Interest Period:
PR x I x AD
---
360
where:
PR = .1875% per annum;
I = the outstanding principal balance of the Series
1995-5 Certificates as of the close of business on the
first day of such Interest Period (or, if less, the
outstanding principal balance of the Series 1995-5
Certificates funded by the issuance of Commercial
Paper Notes); and
AD = the actual number of days in such Interest Period.
"Program Fee Rate" means, for any Interest Period, a rate which,
if applied to the outstanding principal balance of the Series 1995-5
20
Certificates as of the close of business on the first day of such Interest
Period, would yield the Program Fee applicable to such Interest Period.
"Reassignment Amount" shall mean, with respect to any Distribution
Date, after giving effect to any deposits and distributions otherwise to be
made on such Distribution Date, the sum of (a) the Invested Amount on such
Distribution Date, (b) accrued and unpaid interest on the unpaid balance of
the Series 1995-5 Certificates (calculated on the basis of the outstanding
principal balance of the Series 1995-5 Certificates at the Certificate Rate as
in effect during the applicable Interest Periods) through the day preceding
such Distribution Date, (c) the amount of Additional Interest, if any, for
such Distribution Date and any Additional Interest previously due but not
distributed to the Series 1995-5 Certificateholders on a prior Distribution
Date, (d) any Carry-over Amount for such Distribution Date and any Carry-over
Amount previously due but not distributed to the Series 1995-5
Certificateholders on a prior Distribution Date and (e) any Additional
Carry-Over Amount for such Distribution Date and any Additional Carry-Over
Amount previously due but not distributed to the Series 1995-5
Certificateholders on a prior Distribution Date.
"Regulation D" means Regulation D of the Federal Reserve Board, or
any other regulation of the Federal Reserve Board that prescribes reserve
requirements applicable to nonpersonal time deposits or "Eurocurrency
Liabilities" as presently defined in Regulation D, as in effect from time to
time.
"Regulatory Change" means, relative to any Affected Party:
(a) any change in (or the adoption, implementation, change
in, phase-in or commencement of effectiveness of) any:
(i) United States federal or state law or foreign law
applicable to such Affected Party; or
(ii) regulation, interpretation, directive, requirement or
request (whether or not having the force of law) applicable to
such Affected Party of (A) any court or government authority
charged with the interpretation or administration of any law
referred to in clause (a)(i) or (B) any fiscal, monetary or other
authority having jurisdiction over such Affected Party; or
(b) any change in the application to such Affected Party of any
existing law, regulation, interpretation, directive, requirement or
request referred to in clause (a)(i) or (a)(ii) above.
"Required Participation Percentage" shall mean, with respect to
Series 1995-5, 103%; provided, however, that if the aggregate amount of
Principal Receivables due from any Dealer or group of affiliated Dealers at
21
the close of business on the last day of any Collection Period with respect to
which such determination is being made pursuant to Section 11.04 is greater
than 1.5% of the Pool Balance on such last day, the Required Participation
Percentage shall mean, as of such last day and with respect to such Collection
Period and the immediately following Collection Period only, 104%; provided
further that the Seller may, upon 10 days' prior notice to the Trustee and
each Rating Agency, reduce the Required Participation Percentage to a
percentage which shall not be less than 100%; provided that no Rating Agency
shall have notified the Seller or the Servicer that any such reduction will
result in a reduction or withdrawal of the rating of any outstanding Series or
Class with respect to which it is a Rating Agency.
"Required Subordinated Amount" shall mean, as of any date of
determination, the sum of (a) the product of (i) the Subordinated Percentage
and (ii) the Invested Amount on such date and (b) the Incremental Subordinated
Amount.
"Required Subordination Draw Amount" shall have the meaning
specified in Section 4.05.
"Reserve Fund" shall have the meaning specified in
Section 4.04(a)(i).
"Reserve Fund Deposit Amount" shall mean, with respect to any
Distribution Date, the amount, if any, by which (a) the Reserve Fund Required
Amount for such Distribution Date exceeds (b) the amount of funds in the
Reserve Fund after giving effect to any withdrawals therefrom on such
Distribution Date.
"Reserve Fund Required Amount" shall mean (a) with respect to any
Distribution Date with respect to the Revolving Period, an amount equal to the
product of 0.35% and the outstanding principal balance of the Series 1995-5
Certificates on such Distribution Date (after giving effect to any changes
therein on such Distribution Date), and (b) with respect to any Distribution
Date with respect to the Controlled Amortization Period or any Early
Amortization Period, an amount equal to the product of 0.35% and the
outstanding principal balance of the Series 1995-5 Certificates on the
Distribution Date immediately preceding the commencement of the Controlled
Amortization Period or such Early Amortization Period, as applicable, (after
giving effect to any changes therein on such Distribution Date).
"Reuters Screen LIBO Page" shall mean the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Revolving Period" shall mean the period beginning at the close of
business on the Business Day immediately preceding the Series Cut-Off Date and
terminating on the earlier of (a) the close of business on
22
the day immediately preceding the Controlled Amortization Period Commencement
Date and (b) the close of business on the day an Early Amortization Period
commences; provided, however, that, if any Early Amortization Period
terminates as described in clause (c) or clause (d) of the definition thereof
in this Series Supplement and the Controlled Amortization Period has not
commenced, the Revolving Period will recommence as of the close of business on
the day such Early Amortization Period terminates.
"Seller's Collections" shall mean, with respect to any Collection
Period, the sum of (a) the Seller's Percentage of Allocable Non-Principal
Collections for the related Collection Period, plus (b) the Seller's
Percentage of Allocable Principal Collections for the related Collection
Period.
"Seller's Percentage" shall mean 100% minus (a) the Floating
Allocation Percentage, when used with respect to Non-Principal Receivables,
Defaulted Receivables and Principal Receivables during the Revolving Period,
and (b) the Principal Allocation Percentage, when used with respect to
Principal Receivables during the Controlled Amortization Period and an Early
Amortization Period.
"Series 1995-5" shall mean the Series of Investor Certificates,
the terms of which are specified in this Series Supplement.
"Series 1995-5 Accounts" shall have the meaning specified in
Section 4.04(f)(i).
"Series 1995-5 Allocation Percentage" shall mean the Series
Allocation Percentage with respect to Series 1995-5.
"Series 1995-5 Certificateholders" shall mean the Holders of
the Series 1995-5 Certificates.
"Series 1995-5 Certificateholders' Interest" shall mean that
portion of the Certificateholders' Interest evidenced by the Series 1995-5
Certificates.
"Series 1995-5 Certificates" shall mean any one of the
certificates executed by the Seller and authenticated by the Trustee,
substantially in the form of Exhibit A.
"Series 1995-5 Excess Principal Collections" shall mean that
portion of Excess Principal Collections allocated to Series 1995-5 pursuant to
Section 4.11.
"Series 1995-5 Principal Shortfall" shall have the meaning
specified in Section 4.11.
"Series Cut-off Date" shall mean November 30, 1995.
23
"Servicing Fee Rate" shall mean, with respect to Series 1995-5, l%
or, for any Distribution Date in respect of which the Monthly Servicing Fee
has been waived, 0%.
"Settlement Date" means the last day of each Yield Period.
"Special Payment Date" shall mean each Distribution Date with
respect to any Early Amortization Period (other than an Early Amortization
Period which has ended as described in clause (c) or clause (d) of the
definition thereof in this Series Supplement).
"Stand-By Purchase Facility" means and includes (a) the Stand-By
Purchase Agreement, dated as of the Closing Date, among Barton, as borrower,
Societe Generale, as servicing agent for Barton and as liquidity agent, and
the Banks, and (b) any other agreement hereafter entered into by Barton
providing for the sale by Barton of undivided interests (or portions thereof),
or the making of loans or other extensions of credit to Barton secured by a
security interest in specified undivided interests in accounts receivable, or
other financial assets, including Series 1995-5 Certificates, to support all
or part of Barton's payment obligations under the Commercial Paper Notes or to
provide an alternate means for funding Barton's investments in accounts
receivable or other financial assets, including Series 1995-5 Certificates,
and under which the amount available from such sale or such extension of
credit is limited to an amount calculated by reference to the unpaid balance
of such accounts receivable or other financial assets or any portion thereof
or the level of credit enhancement available with respect thereto, in each
case as amended, supplemented or otherwise modified from time to time.
"Subordinated Percentage" shall mean the percentage equivalent of
a fraction, the numerator of which is the Subordination Factor and the
denominator of which will be the excess of 100% over the Subordination Factor.
"Subordination Account" shall have the meaning specified in
Section 4.04(e)(i).
"Subordination Factor" means 10%; provided, however, that the
Subordination Factor will be 11% in the event that the rating of the long-term
unsecured debt of CFC is lowered below BBB- by Standard & Poor's or withdrawn
by Standard & Poor's, unless, in either such case, the Seller receives written
confirmation from Standard & Poor's that the failure to so increase the
Subordination Factor would not result in the downgrade or withdrawal of
Standard & Poor's rating of the Series 1995-5 Certificates.
"Termination Date" shall mean the January 2002 Distribution
Date.
24
"Termination Proceeds" shall mean any Termination Proceeds arising
out of a sale of Receivables (or interests therein) pursuant to Section
12.02(c) of the Agreement with respect to Series 1995-5.
"Tranche" means a portion of the outstanding principal balance of
the Series 1995-5 Certificates that is allocated to a particular Yield Period
by the Agent; provided, however, that, with respect to any Series 1995-5
Certificate that is not owned by Barton, Tranche means the outstanding
principal balance of that Certificate.
"Trust Available Subordinated Amount" means the sum of the
Available Subordinated Amount and the sum of the aggregate available
subordinated amounts for all other outstanding Series.
"Yield Period" means with respect to any Tranche (or portion
thereof):
(a) initially, the period commencing on the Closing Date and
ending such number of days (not to exceed 180 days) thereafter as the
Agent shall select; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Yield Period for such Tranche (or such portion)
and ending such number of days (not to exceed 180 days) thereafter as
the Agent shall select;
provided, however, that (i) with respect to any Tranche transferred by Barton,
the Yield Period with respect to such Tranche shall end on the day immediately
preceding such transfer, and a new Yield Period shall begin on the date of
such transfer in accordance with (ii) below; (ii) with respect to any Series
1995-5 Certificate that is not owned by Barton, Yield Period means each
Interest Period or portion thereof during which such Series 1995-5 Certificate
is not owned by Barton; and (iii) any such Yield Period (other than a Yield
Period consisting of one day) which would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day (unless the
related Tranche shall be accruing interest at a rate determined by reference
to LIBOR, in which case if such succeeding Business Day is in a different
calendar month, such Yield Period shall instead be shortened to the next
preceding Business Day).
"Yield Protection Rate" means, with respect to any Distribution
Date, a per annum rate equal to the sum of (a) a the Certificate Rate
(determined as provided in clause (a) of the definition thereof) for the
related Interest Period, (b) the Servicing Fee Rate, (c) the percentage
equivalent of a fraction, the numerator of which is the average Investor
Default Amount over the twelve most recently occurring Distribution Dates
(including such Distribution Date) (or, if there have not been twelve
Distribution Dates subsequent to the Closing Date, such lesser number of
Distribution Dates as have occurred subsequent to the Closing
25
Date) and the denominator of which is the outstanding principal balance ofthe
Series 1995-5 Certificates with respect to such Distribution Date, and (d)
0.50%.
"Yield Supplement Account" shall have the meaning specified
in Section 4.04(b)(i).
"Yield Supplement Account Deposit Amount" shall mean, with respect
to any Distribution Date, the amount, if any, by which the Yield Supplement
Account Required Amount exceeds the amount on deposit in the Yield Supplement
Account after giving effect to any deposits thereto and withdrawals therefrom
otherwise to be made on such Distribution Date.
"Yield Supplement Account Maximum Amount" shall mean, with respect
to any Distribution Date, an amount equal to the product of (a) 0.50% and (b)
the outstanding principal balance of the Series 1995-5 Certificates on such
Distribution Date (after giving effect to any changes therein on such
Distribution Date).
"Yield Supplement Account Required Amount" shall mean (a) with
respect to any Distribution Date with respect to the Revolving Period, an
amount equal to the product of (a) 0.40% and the outstanding principal balance
of the Series 1995-5 Certificates on such Distribution Date (after giving
effect to any changes therein on such Distribution Date), and (b) with respect
to any Distribution Date with respect to the Controlled Amortization Period or
any Early Amortization Period, an amount equal to the product of 0.40% and the
outstanding principal balance of the Series 1995-5 Certificates on the
Distribution Date immediately preceding the commencement of the Controlled
Amortization Period or such Early Amortization Period, as applicable (after
giving effect to any changes therein on such Distribution Date).
(b) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the term "Rating Agency" shall mean, whenever
used in this Series Supplement or the Agreement with respect to Series 1995-5,
Moody's and Standard & Poor's. As used in this Series Supplement and in the
Agreement with respect to Series 1995-5, "highest investment category" shall
mean (i) in the case of Standard & Poor's, A-l+ or AAA, as applicable, and
(ii) in the case of Moody's, P-1 or Aaa, as applicable.
(c) All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Agreement. The definitions in
Section 2.01 are applicable to the singular as well as to the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders
of such terms.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Series Supplement shall refer to this Series
Supplement as a whole and not to any particular provision of this Series
Supplement; references to any Article, Section or Exhibit are
26
references to Articles, Sections and Exhibits in or to this Series Supplement
unless otherwise specified; and the term "including" means "including without
limitation".
ARTICLE III
Servicing Fee
SECTION 3.01. Servicing Compensation. The monthly servicing fee
(the "Monthly Servicing Fee") shall be payable to the Servicer, in arrears, on
each Distribution Date in respect of any Collection Period (or portion
thereof) occurring prior to the earlier of the first Distribution Date
following the Series 1995-5 Termination Date and the first Distribution Date
on which the Invested Amount is zero, in an amount equal to one-twelfth of the
product of (a) the Servicing Fee Rate, (b) the Pool Balance as of the last day
of the Collection Period second preceding such Distribution Date and (c) the
Series 1995-5 Allocation Percentage with respect to the immediately preceding
Collection Period. The share of the Monthly Servicing Fee allocable to the
Series 1995-5 Certificateholders with respect to any Distribution Date (the
"Certificateholders' Monthly Servicing Fee") shall be equal to one-twelfth of
the product of (a) the Servicing Fee Rate and (b) the Invested Amount as of
the last day of the Collection Period second preceding such Distribution Date.
The remainder of the Monthly Servicing Fee shall be paid by the Seller and in
no event shall the Trust, the Trustee or the Series 1995-5 Certificateholders
be liable for the share of the Monthly Servicing Fee to be paid by the Seller;
and the remainder of the Servicing Fee shall be paid by the Seller and the
Investor Certificateholders of other Series and the Series 1995-5
Certificateholders shall in no event be liable for the share of the Servicing
Fee to be paid by the Seller or the Investor Certificateholders of other
Series. The Certificateholders' Monthly Servicing Fee shall be payable to the
Servicer solely to the extent amounts are available for distribution in
accordance with the terms of this Series Supplement.
The Servicer will be permitted, in its sole discretion, to waive
the Monthly Servicing Fee for any Distribution Date by notice to the Trustee
on or before the related Determination Date; provided that the Servicer
believes that sufficient Collections of Non-Principal Receivables will be
available on any future Distribution Date to pay the Certificateholders'
Monthly Servicing Fee relating to the waived Monthly Servicing Fee. If the
Servicer so waives the Monthly Servicing Fee for any Distribution Date, the
Monthly Servicing Fee and the Certificateholders' Monthly Servicing Fee for
such Distribution Date shall be deemed to be zero for all purposes of this
Series Supplement and the Agreement; provided, however, that such
Certificateholders' Monthly Servicing Fee shall be paid on a future
Distribution Date solely to the extent amounts are available therefor pursuant
to Section 4.10(d); provided further that, to the extent any such waived
Certificateholders' Monthly Servicing Fee is so paid, the
27
related portion of the Monthly Servicing Fee to be paid by the Seller shall be
paid by the Seller to the Servicer.
ARTICLE IV
Rights of the Series 1995-5 Certificateholders and
Allocation and Application of Collections
SECTION 4.01. Allocations; Payments to Seller; Excess Principal
Collections and Unallocated Principal Collections. (a) Collections of
Non-Principal Receivables and Principal Receivables, Miscellaneous Payments
and Defaulted Amounts allocated to Series 1995-5 pursuant to Article IV of the
Agreement shall be allocated and distributed as set forth
in this Article.
(b) Subject to Section 4.01(d) below, the Servicer shall instruct
the Trustee to withdraw from the Collection Account and pay to the Seller on
the dates set forth below the following amounts:
(i) on each Deposit Date:
(A) an amount equal to the Excess Seller's Percentage for
the related Collection Period of Allocable Non-Principal
Collections deposited in the Collection Account for such Deposit
Date; and
(B) an amount equal to the Excess Seller's Percentage for
the related Collection Period of Allocable Principal Collections
deposited in the Collection Account for such Deposit Date, if the
Seller's Participation Amount (determined after giving effect to
any Principal Receivables transferred to the Trust on such Deposit
Date) exceeds the Trust Available Subordinated Amount for the
immediately preceding Determination Date (after giving effect to
the allocations, distributions, withdrawals and deposits to be
made on the Distribution Date immediately following such
Determination Date); and
(ii) on each Deposit Date with respect to the Revolving Period, an
amount equal to the Available Seller's Principal Collections for such
Deposit Date, if the Seller's Participation Amount (determined after
giving effect to any Principal Receivables transferred to the Trust on
such Deposit Date) exceeds the Trust Available Subordinated Amount for
the immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the
Distribution Date immediately following such Determination Date);
provided, however, that Available Seller's Principal Collections shall
be paid to the Seller with respect to any Collection Period only after
an amount equal to
28
the sum of (A) the Deficiency Amount, if any, relating to the
immediately preceding Collection Period and (B) the excess, if any, of
the Reserve Fund Required Amount over the amount in the Reserve Fund on
the immediately preceding Distribution Date (after giving effect to the
allocations of, distributions from, and deposits in, the Reserve Fund on
such Distribution Date) has been deposited in the Collection Account
from such Available Seller's Principal Collections.
The withdrawals to be made from the Collection Account pursuant to
this Section 4.01(b) do not apply to deposits into the Collection Account that
do not represent Collections, including Miscellaneous Payments, payment of the
purchase price for the Certificateholders' Interest pursuant to Section 2.03
of the Agreement, payment of the purchase price for the Series 1995-5
Certificateholders' Interest pursuant to Section 7.01 of this Series
Supplement and proceeds from the sale, disposition or liquidation of
Receivables pursuant to Section 9.02 or 12.02 of the Agreement.
(c) The Servicer shall instruct the Trustee to withdraw from the
Collection Account and deposit into the Reserve Fund on Deposit Dates with
respect to the Revolving Period Available Seller's Principal Collections for
such Deposit Date, up to the amount of the excess, if any, determined pursuant
to Section 4.01(b)(ii)(B).
(d) Notwithstanding the provisions of Section 4.01(b)(i), on each
Deposit Date during any Collection Period on which any amount is on deposit in
the Excess Funding Account or Principal Funding Account, the Servicer shall
instruct the Trustee to withdraw from the Collection Account and deposit in
the Yield Supplement Account the amounts otherwise distributable to the Seller
pursuant to Section 4.01(b)(i) until the amount on deposit in the Yield
Supplement Account is equal to the Yield Supplement Account Required Amount.
SECTION 4.02. Monthly Interest. (a) The amount of monthly interest
("Monthly Interest") with respect to the Series 1995-5 Certificates on any
Distribution Date, commencing with the Initial Distribution Date, shall be an
amount equal to the product of (i) the Certificate Rate, (ii) the outstanding
principal balance of the Series 1995-5 Certificates as of the close of
business on the preceding Distribution Date (after giving effect to all
repayments of principal made to the Series 1995-5 Certificateholders on such
preceding Distribution Date, if any) or, in the case of the Initial
Distribution Date, the Initial Principal Amount on the Closing Date and (iii)
a fraction, the numerator of which is the actual number of days elapsed in
such Interest Period and the denominator of which is 360.
On the Determination Date preceding each Distribution Date,
commencing with the Initial Distribution Date, the Servicer shall determine
the excess, if any (the "Interest Shortfall"), of (x) the aggregate Monthly
Interest for the Interest Period applicable to such Distribution Date over
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(y) the amount which will be available to be distributed to Series 1995-5
Certificateholders on such Distribution Date in respect thereof pursuant to
this Series Supplement. If the Interest Shortfall with respect to any
Distribution Date is greater than zero, an additional amount ("Additional
Interest") equal to the product of (i) the Certificate Rate (calculated
pursuant to clause (a) of the definition thereof) for the Interest Period
commencing on the related Distribution Date plus 2.0% (or, for subsequent
Interest Periods, the Certificate Rate (calculated pursuant to clause (a) of
the definition thereof) for such subsequent Interest Period plus 2.0%), (ii)
such Interest Shortfall (or the portion thereof which has not been paid to
Series 1995-5 Certificateholders) and (iii) a fraction, the numerator of which
is the actual number of days elapsed in such Interest Period (or in a
subsequent Interest Period) and the denominator of which is 360, shall be
payable as provided herein with respect to the Series 1995-5 Certificates on
each Distribution Date following such Distribution Date to and including the
Distribution Date on which such Interest Shortfall is paid to Series 1995-5
Certificateholders. Notwithstanding anything to the contrary herein,
Additional Interest shall be payable or distributed to Series 1995-5
Certificateholders only to the extent permitted by applicable law.
(b) On the Determination Date preceding each Distribution Date,
commencing with the Initial Distribution Date, the Servicer shall determine
the excess, if any (the "Carry-over Shortfall"), of (x) the Carry-over Amount,
if any, for such Distribution Date over (y) the amount which will be available
to be distributed to Series 1995-5 Certificateholders in respect thereof on
such Distribution Date pursuant to this Series Supplement. If the Carry-over
Shortfall with respect to any Distribution Date is greater than zero, an
additional amount ("Additional Carry-over Amount") equal to the product of (i)
the Certificate Rate (calculated pursuant to clause (a) of the definition
thereof) for the Interest Period commencing on the related Distribution Date
plus 2.0% (or, for subsequent Interest Periods, the Certificate Rate
(calculated pursuant to clause (a) of the definition thereof) for such
subsequent Interest Periods plus 2.0%), (ii) such Carry-over Shortfall (or the
portion thereof which has not been paid to Series 1995-5 Certificateholders)
and (iii) a fraction, the numerator of which is the actual number of days
elapsed in such Interest Period (or in a subsequent Interest Period) and the
denominator of which is 360, shall be payable as provided herein with respect
to the Series 1995-5 Certificates on each Distribution Date following such
Distribution Date to the Distribution Date on which such Carry-over Shortfall
is paid to Series 1995-5 Certificateholders. Notwithstanding anything to the
contrary herein, any Additional Carry-Over Amount shall be payable or
distributed to Series 1995-5 Certificateholders only to the extent permitted
by applicable law.
SECTION 4.03. Determination of Monthly Principal. The amount of
monthly principal ("Monthly Principal") distributable with respect to the
Series 1995-5 Certificates on each Distribution Date with respect to an Early
Amortization Period and the Controlled Amortization Period shall be equal to
the Available Investor Principal Collections with respect to such Distribution
Date; provided, however, that, for each
30
Distribution Date with respect to the Controlled Amortization Period, Monthly
Principal shall not exceed the Controlled Distribution Amount for such
Distribution Date; and provided further that Monthly Principal shall not
exceed the Invested Amount of the Series 1995-5 Certificates.
SECTION 4.04. Establishment of Reserve Fund and Funding Accounts.
(a) (i) The Servicer, for the benefit of the Series 1995-5 Certificateholders,
shall cause to be established and maintained in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Reserve Fund") which
shall be identified as the "Reserve Fund for the CARCO Auto Loan Master Trust,
Series 1995-5" and shall bear a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 1995-5
Certificateholders. On the Closing Date, the Seller shall cause to be
deposited in the Reserve Fund the Initial Reserve Fund Deposit Amount.
(ii) At the direction of the Servicer, funds on deposit in the
Reserve Fund shall be invested by the Trustee in Eligible Investments selected
by the Servicer that will mature so that such funds will be available at the
close of business on or before the Business Day next preceding the following
Distribution Date. All Eligible Investments shall be held by the Trustee for
the benefit of the Series 1995-5 Certificateholders. On each Distribution
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Reserve Fund received prior to such
Distribution Date shall be applied as set forth in Section 4.06(a) of this
Series Supplement. Funds deposited in the Reserve Fund on a Business Day
(which immediately precedes a Distribution Date) upon the maturity of any
Eligible Investments are not required to be invested overnight.
(b) (i) The Servicer, for the benefit of the Series 1995-5
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, an Eligible Deposit Account (the "Yield Supplement
Account"), which shall be identified as the "Yield Supplement Account for the
CARCO Auto Loan Master Trust Series 1995-5" and shall bear a designation
clearly indicating that the funds deposited therein are held for the benefit
of the Series 1995-5 Certificateholders. On the Closing Date, the Seller shall
cause to be deposited into the Yield Supplement Account the Initial Yield
Supplement Account Deposit Amount.
(ii) At the direction of the Servicer, funds on deposit in the
Yield Supplement Account shall be invested by the Trustee in investments
consisting of financial assets selected by the Servicer; provided, however,
that such assets must, by their terms, convert to cash within a finite period
of time. All such financial assets shall be held by the Trustee for the
benefit of the Series 1995-5 Certificateholders. On each Distribution Date,
all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Yield Supplement Account shall be applied
as set forth in Section 4.06(a) of this Series Supplement.
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(iii) If on any Distribution Date there is a Carry-over Amount,
the Servicer shall cause the Trustee to apply the amounts on deposit in the
Yield Supplement Account up to the amount of such Carryover Amount to satisfy
such Carry-over Amount. The Trustee shall be authorized to dispose of
investments in the Yield Supplement Account in order to obtain funds with
which to satisfy any Carry-over Amount.
(iv) If on any Distribution Date the amount on deposit in the
Yield Supplement Account (after giving effect to any withdrawals to be made
from the Yield Supplement Account on such Distribution Date) is greater than
the greater of (A) the Yield Supplement Account Required Amount and (B) if a
deposit to the Yield Supplement Account was required to be made on such
Distribution Date or any prior Distribution Date pursuant to Section 4.10(b),
the Yield Supplement Account Maximum Amount, the Servicer shall cause the
Trustee to pay to the Seller on such Distribution Date the excess of such
amount on deposit in the Yield Supplement Account over the (1) Yield
Supplement Account Required Amount or (2) if a deposit to the Yield Supplement
Account was required to be made to the Yield Supplement Account on such
Distribution Date or any prior Distribution Date pursuant to Section 4.10(b),
the Yield Supplement Maximum Amount.
(c) (i) The Servicer, for the benefit of the Series 1995-5
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, an Eligible Deposit Account (the "Principal Funding
Account"), which shall be identified as the "Principal Funding Account for
CARCO Auto Loan Master Trust, Series 1995-5" and shall bear a designation
clearly indicating that the funds deposited therein are held for the benefit
of the Series 1995-5 Certificateholders.
(ii) At the direction of the Servicer, funds on deposit in the
Principal Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall be
held by the Trustee for the benefit of the Series 1995-5 Certificateholders.
On each Distribution Date all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit therein shall be applied
as set forth in Section 4.06(a) of this Series Supplement. Funds on deposit in
the Principal Funding Account shall be invested at the direction of the
Servicer in Eligible Investments that will mature so that such funds will be
available on or before the close of business on the Business Day next
preceding the following Distribution Date. Funds deposited in the Principal
Funding Account on a Business Day (which immediately precedes a Distribution
Date) upon the maturity of any Eligible Investments are not required to be
invested overnight.
(d) (i) The Servicer, for the benefit of the Series 1995-5
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, an Eligible Deposit Account (the "Excess Funding
Account"), which shall be identified as the "Excess Funding Account for CARCO
Auto Loan Master Trust, Series 1995-5" and shall bear a
32
designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 1995-5 Certificateholders. No deposit will be made
to the Excess Funding Account on the Closing Date.
(ii) At the direction of the Servicer, funds on deposit in the
Excess Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall be
held by the Trustee for the benefit of the Series 1995-5 Certificateholders.
On each Distribution Date, all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Excess Funding
Account shall be applied as set forth in Section 4.06(a) of this Series
Supplement. Funds deposited in the Excess Funding Account on any Distribution
Date shall be invested at the direction of the Servicer in Eligible
Investments that will mature so that such funds will be available on or before
the close of business on the Business Day next preceding the following
Distribution Date. Funds deposited in the Excess Funding Account on a Business
Day (which immediately precedes a Distribution Date) upon the maturity of any
Eligible Investments are not required to be invested overnight.
(e) (i) The Servicer, for the benefit of the Series 1995-5
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, an Eligible Deposit Account (the "Subordination
Account"), which shall be identified as the "Subordination Account for CARCO
Auto Loan Master Trust, Series 1995-5" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 1995-5 Certificateholders. No deposit will be made to the Subordination
Account on the Closing Date.
(ii) At the direction of the Servicer, funds on deposit in the
Subordination Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Series 1995-5 Certificateholders. On each
Distribution Date, all interest and other investment earnings (net of losses
and investment expenses) on funds on deposit in the Subordination Account
shall be applied as set forth in Section 4.06(a) of this Series Supplement.
Funds deposited in the Subordination Account on any Distribution Date shall be
invested at the direction of the Servicer in Eligible Investments that will
mature so that such funds will be available on or before the close of business
on the Business Day next preceding the following Distribution Date. Funds
deposited in the Subordination Account on a Business Day (which immediately
precedes a Distribution Date) upon the maturity of any Eligible Investments
are not required to be invested overnight.
(f) (i) The Trustee shall possess all right, title and interest in
and to all funds on deposit from time to time in, and all Eligible Investments
and other financial assets credited to, the Reserve Fund, the Yield Supplement
Account, the Principal Funding Account, the Excess Funding Account and the
Subordination Account (collectively the "Series
33
1995-5 Accounts") and in all proceeds thereof. The Series 1995-5 Accounts
shall be under the sole dominion and control of the Trustee for the benefit of
the Series 1995-5 Certificateholders. If, at any time, any of the Series
1995-5 Accounts ceases to be an Eligible Deposit Account, the Trustee (or the
Servicer on its behalf) shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Series 1995-5 Account meeting the conditions specified in
paragraph (a)(i), (b)(i), (c)(i), (d)(i) or (e)(i) above, as applicable, as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Series 1995-5 Account. Neither the Seller, the Servicer nor any
person or entity claiming by, through or under the Seller, the Servicer or any
such person or entity shall have any right, title or interest in, or any right
to withdraw any amount from, any Series 1995-5 Account, except as expressly
provided herein. Schedule 1, which is hereby incorporated into and made part
of this Series Supplement, identifies each Series 1995-5 Account by setting
forth the account number of each such account, the account designation of each
such account and the name of the institution with which such account has been
established. If a substitute Series 1995-5 Account is established pursuant to
this Section, the Servicer shall provide to the Trustee an amended Schedule 1,
setting forth the relevant information for such substitute Series 1995-5
Account.
(ii) Pursuant to the authority granted to the Servicer in Section
3.01(a) of the Agreement, the Servicer shall have the power, revocable by the
Trustee, to make withdrawals and payments or to instruct the Trustee to make
withdrawals and payments from the Series 1995-5 Accounts for the purposes of
carrying out the Servicer's or Trustee's duties hereunder.
SECTION 4.05. Deficiency Amount. With respect to each Distribution
Date, commencing with the Initial Distribution Date, on the related
Determination Date, the Servicer shall determine the amount (the "Deficiency
Amount"), if any, by which (a) the sum of (i) Monthly Interest for such
Distribution Date; (ii) any Monthly Interest previously due but not
distributed to the Series 1995-5 Certificateholders on a prior Distribution
Date; (iii) Additional Interest, if any, for such Distribution Date and any
Additional Interest previously due but not distributed to the Series 1995-5
Certificateholders on a prior Distribution Date; (iv) the Certificateholders'
Monthly Servicing Fee for such Distribution Date; (v) the Investor Default
Amount, if any, for such Distribution Date; (vi) the Series 1995-5 Allocation
Percentage of the amount of any Adjustment Payment required to be deposited in
the Collection Account pursuant to Section 3.09(a) of the Agreement with
respect to the related Collection Period that has not been so deposited as of
such Determination Date; and (vii) if such Distribution Date constitutes the
Final Payment Date the sum of (A) the amount of any Carry-over Amount for such
Distribution Date, (B) the amount of any Carry-over Amount previously due but
not previously distributed to Series 1995-5 Certificateholders on a prior
Distribution Date, (C) the amount of any Additional Carry-over Amount for such
Distribution Date and (D) the amount of any Additional Carry-over
34
Amount previously due but not previously paid to Series 1995-5 Certificate-
holders on a prior Distribution Date, in each case that will not be satisfied
on such date by application, pursuant to Section 4.04(b)(iii), of amounts on
deposit in the Yield Supplement Account, exceeds (b) the sum of (i) Investor
Non-Principal Collections for such Distribution Date plus any Investment
Proceeds with respect to such Distribution Date and (ii) the amount of funds
in the Reserve Fund which are available pursuant to Section 4.08(a) and
Section 4.08(d) to cover any portion of the Deficiency Amount. The lesser of
the Deficiency Amount and the Available Subordinated Amount shall be the
"Required Subordination Draw Amount".
SECTION 4.06. Application of Investor Non-Principal Collections,
Investment Proceeds and Available Investor Principal Collections. The Servicer
shall cause the Trustee to apply, on each Distribution Date, commencing with
the Initial Distribution Date, Investor Non-Principal Collections, Investment
Proceeds and Available Investor Principal Collections to make the following
distributions:
(a) On each Distribution Date, commencing with the Initial
Distribution Date, an amount equal to the sum of Investor Non-Principal
Collections and any Investment Proceeds with respect to such Distribution Date
will be distributed in the following priority:
(i) first, an amount equal to Monthly Interest for such
Distribution Date, plus the amount of any Monthly Interest previously
due but not distributed to the Series 1995-5 Certificateholders on a
prior Distribution Date, plus the amount of any Additional Interest for
such Distribution Date and any Additional Interest previously due but
not distributed to the Series 1995-5 Certificateholders on a prior
Distribution Date shall be distributed to the Series 1995-5
Certificateholders;
(ii) second, an amount equal to the Certificateholders' Monthly
Servicing Fee for such Distribution Date shall be distributed to the
Servicer (unless such amount has been netted against deposits to the
Collection Account or waived);
(iii) third, an amount equal to the Reserve Fund Deposit Amount,
if any, for such Distribution Date shall be deposited in the Reserve
Fund;
(iv) fourth, an amount equal to the Investor Default Amount for
such Distribution Date shall be treated as a portion of Investor
Principal Collections for such Distribution Date;
(v) fifth, an amount equal to the Carry-over Amount (after giving
effect to any withdrawals from the Yield Supplement Account on such
Distribution Date), if any, for such Distribution Date, plus the amount
of any Carry-over Amount previously due but not previously distributed
to the Series 1995-5 Certificateholders on a
35
prior Distribution Date, plus the amount of any Additional Carryover
Amount for such Distribution Date and any Additional Carryover Amount
previously due but not previously distributed to the Series 1995-5
Certificateholders on a prior Distribution Date shall be distributed to
the Series 1995-5 Certificateholders;
(vi) sixth, an amount equal to the Yield Supplement Account
Deposit Amount, if any, for such Distribution Date shall be deposited in
the Yield Supplement Account; and
(vii) seventh, the balance, if any, shall constitute Excess
Servicing and shall be allocated and distributed as set forth in Section
4.10.
(b) On each Distribution Date, commencing with the Initial
Distribution Date, with respect to the Revolving Period, an amount equal to
Available Investor Principal Collections deposited in the Collection Account
for the related Collection Period shall be allocated first to make a deposit
to the Excess Funding Account if the sum of (i) the Invested Amount (reduced
for this purpose by the amount, if any, by which the Required Participation
Amount exceeds the Pool Balance due to an increase in the Subordination
Factor) and (ii) the amount on deposit in the Excess Funding Account (other
than any Investment Proceeds) prior to the allocation on such Distribution
Date is less than the outstanding principal balance of the Series 1995-5
Certificates and second treated as Excess Principal Collections and applied in
accordance with Section 4.04 of the Agreement.
(c) On each Distribution Date with respect to the Controlled
Amortization Period or an Early Amortization Period, an amount equal to
Available Investor Principal Collections will be distributed in the following
priority:
(i) first, an amount equal to Monthly Principal for such
Distribution Date shall be distributed to the Series 1995-5
Certificateholders; and
(ii) second, for each Distribution Date with respect to the
Controlled Amortization Period unless an Early Amortization Event has
occurred (other than an Early Amortization Event which has resulted in
an Early Amortization Period which has ended as described in clause (c)
or clause (d) of the definition thereof in this Series Supplement),
after giving effect to the transactions referred to in clause (i) above,
an amount equal to the balance, if any, of such Available Investor
Principal Collections shall be treated as Excess Principal Collections
and applied in accordance with Section 4.04 of the Agreement and Section
4.11 hereof.
SECTION 4.07. Distributions to Series 1995-5
Certificateholders. (a) The Servicer shall cause the Trustee to make the
following distributions at the following times from the Collection Account,
36
the Reserve Fund, the Principal Funding Account, the Excess Funding
Account and the Subordination Account:
(i) on each Distribution Date, all amounts on deposit in the
Collection Account or the Reserve Fund that are payable to the Series
1995-5 Certificateholders with respect to accrued interest will be
distributed to the Series 1995-5 Certificateholders; and
(ii) on each Distribution Date with respect to the Controlled
Amortization Period or any Early Amortization Period, all amounts on
deposit in the Principal Funding Account and the Excess Funding Account,
and all amounts on deposit in the Collection Account that are payable to
the Series 1995-5 Certificateholders with respect to principal, up to a
maximum amount on any such day equal to (A) in the case of the
Controlled Amortization Period, the Controlled Principal Payment Amount
for such Distribution Date and (B) in the case of any Early Amortization
Period, the excess of the outstanding principal balance of the Series
1995-5 Certificates over the unreimbursed Investor Charge-Offs, shall be
distributed to the Series 1995-5 Certificateholders.
(b) On each Distribution Date on which there is any Carryover
Amount or Additional Carry-over Amount, the Servicer shall instruct the
Trustee to distribute to the Series 1995-5 Certificateholders the amounts on
deposit in the Yield Supplement Account and the Collection Account payable
with respect thereto pursuant to Section 4.04(b)(iii) and Section 4.06(a)(v)
(other than from Available Seller's Collections), respectively.
(c) If, on any Distribution Date with respect to the Controlled
Amortization Period or any Early Amortization Period, there is any Carryover
Amount or Additional Carry-over Amount (after giving effect to any
distributions on such date pursuant to Section 4.07(b)), the Servicer shall
instruct the Trustee to distribute to the Series 1995-5 Certificateholders the
amounts payable with respect thereto pursuant to Section 4.08(b) and, if such
Distribution Date is the Final Payment Date, Section 4.08(d).
(d) On any Distribution Date with respect to the Controlled
Amortization Period or any Early Amortization Period, an amount equal to the
sum of any amounts payable under Section 4.15 or 10.01 of this Series
Supplement (after giving effect to the distributions to be made pursuant to
Section 4.10(c) on such Distribution Date) shall be withdrawn from the
Subordination Account and distributed to the applicable Series 1995-5
Certificateholder or Affected Party.
(e) The distributions to be made pursuant to this Section are
subject to the provisions of Sections 2.03, 9.02, 10.01 and 12.02 of the
Agreement and Sections 8.01 and 8.02 of this Series Supplement.
37
SECTION 4.08. Application of Reserve Fund and Available
Subordinated Amount. (a) If the portion of Investor Non-Principal Collections
and Investment Proceeds allocated to the Series 1995-5 Certificateholders on
any Distribution Date pursuant to Section 4.06(a) is not sufficient to make
the entire distributions required on such Distribution Date by Sections
4.06(a)(i), (ii) and (iv), the Servicer shall cause the Trustee to withdraw
funds from the Reserve Fund to the extent available therein, and apply such
funds to complete the distributions pursuant to Section 4.06(a)(i), (ii) and
(iv); provided, however, that during any Early Amortization Period (other than
an Early Amortization Period which has ended as described in clause (c) or
clause (d) of the definition thereof in this Series Supplement) funds shall
not be withdrawn from the Reserve Fund to make distributions otherwise
required by Section 4.06(a)(iv) to the extent that, after giving effect to
such withdrawal, the amount on deposit in the Reserve Fund shall be less than
$1,000,000.
(b) If there is a Required Subordination Draw Amount for such
Distribution Date, and such Distribution Date is not the Expected Final
Payment Date, the Servicer shall apply or cause the Trustee to apply the
Available Seller's Collections on deposit in the Collection Account on such
Distribution Date, but only up to the amount of the Required Subordination
Draw Amount, to make the distributions required by Sections 4.06(a)(i), (ii)
and (iv) that have not been made through the application of funds from the
Reserve Fund in accordance with the preceding paragraph. If there is a
Required Subordination Draw Amount for such Distribution Date and such
Distribution Date is the Final Payment Date, the Servicer shall apply or cause
the Trustee to apply the Available Seller's Collections on deposit in the
Collection Account on such Distribution Date, but only up to the amount of the
Required Subordination Draw Amount, to make the distributions required by
Sections 4.06(a)(i), (ii), (iv) and (v) that have not been made through the
application of funds from the Reserve Fund in accordance with the preceding
paragraph and Section 4.08(d). Any such Available Seller's Collections
remaining after the application thereof pursuant to the first or second
preceding sentence, as applicable, shall be treated as a portion of Investor
Principal Collections for such Distribution Date, but only up to the amount of
unpaid Adjustment Payments allocated to Series 1995-5 as described in Section
4.05(a)(vi). The amount of the Available Seller's Collections applied in
accordance with the three preceding sentences shall reduce the Available
Subordinated Amount in all other cases as described in clause (A) of the
definition thereof. If the Required Subordination Draw Amount exceeds
Available Seller's Collections for such Distribution Date, the Available
Subordinated Amount shall be further reduced by the amount of such excess, but
not by more than the sum of (x) the Investor Default Amount and (y) the amount
of unpaid Adjustment Payments allocated to Series 1995-5 as described in
Section 4.05(a)(vi).
(c) If, after giving effect to the allocations of, distributions
from, and deposits in, the Reserve Fund made pursuant to
38
Sections 4.01(c), 4.04, 4.06(a), 4.08(a) and 4.08(e), (i) the amount in the
Reserve Fund is greater than the Reserve Fund Required Amount (or, for any
Distribution Date with respect to an Early Amortization Period, the Excess
Reserve Fund Required Amount) for such Distribution Date, the Servicer shall
cause the Trustee to distribute such excess amount to the Seller, subject to
the proviso contained in paragraph (g) or (ii) the amount in the Reserve Fund
is less than such Reserve Fund Required Amount, then the Trustee shall deposit
any remaining Available Seller's Collections on deposit in the Collection
Account for such Distribution Date after giving effect to Section 4.08(b) into
the Reserve Fund until the amount in the Reserve Fund is equal to such Reserve
Fund Required Amount. On the Termination Date, any funds in the Reserve Fund
will be treated as Available Investor Principal Collections as provided in the
definition thereof.
(d) If, on the Final Payment Date, after giving effect to (c)
above, there is a Carry-over Amount or Additional Carry-over Amount after
giving effect to withdrawals from the Yield Supplement Account on such date,
the Servicer shall cause the Trustee to withdraw funds in the amount of such
Carry-over Amount or Additional Carry-over Amount from the Reserve Fund (to
the extent available therein), and distribute such funds to the Series 1995-5
Certificateholders. Any funds remaining on deposit in the Reserve Fund after
the earlier of (i) payment in full of the outstanding principal balance of the
Series 1995-5 Certificates and (ii) the Series Termination Date shall be paid
to the Seller.
(e) If, for any Distribution Date with respect to an Early
Amortization Period, after giving effect to the allocations of, distributions
from, and deposits in, the Reserve Fund made pursuant to Sections 4.01(c),
4.04, 4.06(a) and 4.08(a), the amount in the Reserve Fund is less than the
Excess Reserve Fund Required Amount for such Distribution Date, the Trustee
shall deposit any remaining Available Seller's Collections on deposit in the
Collection Account for such Distribution Date into the Reserve Fund until the
amount in the Reserve Fund is equal to such Excess Reserve Fund Required
Amount.
(f) On any Distribution Date with respect to the Controlled
Amortization Period or any Early Amortization Period, an amount equal to
Available Seller's Collections for such Distribution Date (after giving effect
to any distributions thereof pursuant to Section 4.08(a), (b), (c) or (e)),
but only to the extent of the Available Subordinated Amount for such
Distribution Date, shall be deposited to the Subordination Account.
(g) The balance of Available Seller's Collections on any
Distribution Date, after giving effect to any distributions thereof pursuant
to Section 4.08(a), (b), (c), (e) or (f) shall be distributed to the Seller on
such Distribution Date; provided that, in the case of any remaining Available
Seller's Principal Collections, if the Trust Available Subordinated Amount for
the immediately preceding Determination Date exceeds the Seller's
Participation Amount on such date (determined after giving effect
39
to any Principal Receivables transferred to the Trust on such Distribution
Date), Section 4.08(c) hereof shall not apply and the amount of such excess
shall be deposited into the Reserve Fund, with any remaining Available
Seller's Principal Collections paid to the Seller.
SECTION 4.09. Investor Charge-Offs. If, on any Distribution Date
on which the Available Subordinated Amount on the preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and
deposits to be made on such Distribution Date) is zero and the Deficiency
Amount for such Distribution Date is greater than zero, the Invested Amount
shall be reduced by the amount of the excess of such Deficiency Amount over
any remaining Available Subordinated Amount on such Determination Date, but
not by more than the Investor Default Amount (an "Investor Charge-Off").
Investor Charge- Offs shall thereafter be reimbursed and the Invested Amount
increased (but not by an amount in excess of the aggregate unreimbursed
Investor Charge-Offs on any Distribution Date) by the sum of (a) Allocable
Miscellaneous Payments with respect to such Distribution Date and (b) the
amount of Excess Servicing allocated and available for that purpose pursuant
to Section 4.10(a).
SECTION 4.10. Excess Servicing. The Servicer shall cause the
Trustee to apply, on each Distribution Date, commencing with the Initial
Distribution Date, Excess Servicing with respect to the Collection Period
immediately preceding such Distribution Date, to make the following
distributions in the following priority:
(a) an amount equal to the aggregate amount of Investor
Charge-Offs which have not been previously reimbursed as provided in
Section 4.09 (after giving effect to the allocation on such Distribution
Date of any amount for that purpose pursuant to Section 4.09) shall be
treated as a portion of Available Investor Principal Collections with
respect to such Distribution Date;
(b) if the Assets Receivables Rate with respect to the Collection
Period immediately preceding such Distribution Date is less than the
Yield Protection Rate with respect to such Distribution Date, the
balance, if any, up to an amount equal to the difference between the
Yield Supplement Account Maximum Amount with respect to such
Distribution Date and the amount on deposit in the Yield Supplement
Account (after giving effect to all distributions therefrom on such
Distribution Date), shall be deposited to the Yield Supplement Account;
(c) an amount equal to the sum of any amounts payable pursuant to
Section 4.15 or Section 10.01 shall be paid to the applicable Series
1995-5 Certificateholder or Affected Party;
(d) an amount equal to the aggregate outstanding amounts of
the Certificateholders' Monthly Servicing Fee which have been
40
previously waived pursuant to Section 3.01 shall be distributed to
the Servicer; and
(e) the balance, if any, shall be distributed to the Seller.
SECTION 4.11. Excess Principal Collections. (a) That portion of
Excess Principal Collections for any Distribution Date equal to the amount of
Series 1995-5 Excess Principal Collections for such Distribution Date will be
allocated to Series 1995-5 and will be distributed as set forth in this Series
Supplement.
(b) Series 1995-5 Excess Principal Collections, with respect to
any Distribution Date, shall mean an amount equal to the Series 1995-5
Principal Shortfall for such Distribution Date; provided, however, that, if
the aggregate amount of Excess Principal Collections for all Series for such
Distribution Date is less than the aggregate amount of Principal Shortfalls
for all Series for such Distribution Date, then Series 1995-5 Excess Principal
Collections for such Distribution Date shall equal the product of (x) Excess
Principal Collections for all Series for such Distribution Date and (y) a
fraction, the numerator of which is the Series 1995-5 Principal Shortfall for
such Distribution Date and the denominator of which is the aggregate amount of
Principal Shortfalls for all Series for such Distribution Date. The Series
1995-5 Principal Shortfall, with respect to any Distribution Date, shall equal
the excess of (i) (x) for any Distribution Date with respect to the Controlled
Amortization Period, the Controlled Distribution Amount, or (y) for any
Distribution Date with respect to an Early Amortization Period, the Invested
Amount, over (ii) Available Investor Principal Collections for such
Distribution Date (excluding any portion thereof attributable to Excess
Principal Collections).
SECTION 4.12. Excess Funding Account. (a) Any funds on deposit in
the Excess Funding Account on the August 1999 Distribution Date will be
deposited in the Principal Funding Account on such date. In addition, no funds
will be deposited in the Excess Funding Account during any Early Amortization
Period or with respect to any Collection Period following the July 1999
Collection Period.
(b) On each Determination Date during the Revolving Period, the
Seller shall determine whether the sum of the Invested Amount (reduced for
this purpose by the amount, if any, by which the Required Participation Amount
exceeds the Pool Balance due to an increase in the Subordination Factor) and
the amount on deposit in the Excess Funding Account (other than any Investment
Proceeds) is greater than the outstanding principal balance of the Series
1995-5 Certificates. If on any such Determination Date such sum is greater
than the outstanding principal balance of the Series 1995-5 Certificates and
thus there are sufficient Principal Receivables in the Trust to permit an
increase in the Invested Amount without causing an Early Amortization Event to
occur with respect to any outstanding Series, the Seller shall notify the
Trustee of the amount of the increase in the Invested Amount. Subject to the
provisions set forth
41
below in this Section 4.12(b) and to Sections 4.12(c) and (d) below, upon
receipt of such notice the Invested Amount shall be increased by the amount
specified, and the Servicer shall instruct the Trustee to withdraw from the
Excess Funding Account and pay to the Seller or allocate to one or more other
Series, on the immediately succeeding Distribution Date, an amount equal to
the amount of such increase in the Invested Amount. Such payment shall be in
payment or partial payment pursuant to the Receivables Purchase Agreement for
additional Principal Receivables transferred to the Trust or allocated to
Series 1995-5. To the extent that the Invested Amount is increased by any
payment to the Seller or any allocation to one or more other Series, the
Seller's Interest or such other Series' invested amount, as applicable, shall
be reduced by the amount of such payment. In addition, any increase in the
Invested Amount is subject to the condition that after giving effect to such
increase (i) the Pool Balance equals or exceeds (ii) the sum of (A) the
Required Participation Amount, (B) the sum of the Required Subordinated Amount
and the sum of the required subordinated amounts for all other Series (or, if
such other series shall have no required subordinated amount, the available
subordinated amount with respect to such Series) and (C) the sum of any
subordinated amounts supporting any Enhancement for all other Series. In
connection with the foregoing, the Seller shall endeavor (taking into account
any seasonality experienced in the Accounts in the Trust) to minimize the
amounts on deposit, from time to time, in the Excess Funding Account.
(c) In the event that other Series issued by the Trust provide for
excess funding accounts or other arrangements similar to the Excess Funding
Account involving fluctuating levels of investments in Principal Receivables,
(i) the allocation of additional Principal Receivables to increase the
Invested Amount and the invested amounts of such other Series (and the related
withdrawals from the Excess Funding Account and the other excess funding or
similar accounts) will be based on the proportion that the amount on deposit
in the Excess Funding Account bears to amounts on deposit in the excess
funding accounts of all Series providing for excess funding accounts or such
similar arrangements or to amounts otherwise similarly available and (ii) the
deposit of amounts into the Excess Funding Account and the excess funding
accounts of such other Series will be pro rata based on the proportion that
the Adjusted Invested Amount bears to the adjusted invested amounts of all
Series providing for excess funding accounts or such similar arrangements.
(d) In the event that any other Series is in an amortization,
early amortization or accumulation period, the amounts of any withdrawals from
the Excess Funding Account shall be applied first to satisfy in full any then
applicable funding or payment requirements of such Series and second to make a
payment to the Seller. In the event that more than one other Series is in an
amortization, early amortization or accumulation period, the amounts of any
withdrawals from the Excess Funding Account shall be allocated (and, if
necessary, reallocated) among such Series as specified in the related Series
Supplement to meet the funding or payment requirements of each such Series
first to satisfy in full all then applicable funding or
42
payment requirements of each such Series and second to make a payment to
the Seller.
SECTION 4.13. Controlled Amortization Period Length; Controlled
Amortization Period Commencement Date. Beginning on the August 1999
Distribution Date, and on each Distribution Date thereafter that occurs prior
to the Controlled Amortization Period Commencement Date, the Servicer shall
calculate the Controlled Amortization Period Length and, if applicable,
determine the Controlled Amortization Period Commencement Date. Once the
Servicer has determined the Controlled Amortization Period Commencement Date,
the Servicer shall promptly notify the Trustee in writing of such
determination. In connection therewith, the Seller hereby agrees not to cause
the Trust to issue any new Series during the period from the date hereof until
the date that the Series 1995-5 Certificates shall have been paid in full, if
such issuance would have an adverse effect on the results obtained by
application of the formula used to compute the Controlled Amortization Period
Length.
SECTION 4.14. Rate. The Agent shall maintain records as to the
amount of each Tranche, the Yield Period thereof and the Barton Rate
applicable thereto, and shall provide such information to the Servicer upon
request. The "Investment Amount" of any Tranche owned by Barton is that
portion of the outstanding principal balance of the Series 1995-5 Certificates
allocated to such Tranche by the Agent. The "Investment Amount" of any Series
1995-5 Certificate not owned by Barton is the outstanding principal amount of
such Series 1995-5 Certificate. For purposes of calculating the Barton Rate,
(a) the Investment Amount of any portion of a Tranche owned by Barton and
funded pursuant to the StandBy Purchase Facility shall be deemed to be the
original purchase price paid by the Banks (or principal amount loaned) with
respect to such portion (less any portion of such purchase price paid by the
Banks (or principal amount loaned) allocable to Earned Return accrued and
unpaid at the time of such funding), as reduced from time to time by amounts
received and distributed to such Bank on account of such purchase price paid
by the Banks (or principal amount loaned) (other than any portion thereof
allocable to Earned Return); (b) the Investment Amount of a Tranche owned by
Barton and funded by a Credit Advance shall be deemed to be the principal
amount of such Credit Advance (less the amount, if any, of such Credit Advance
used to fund Earned Return accrued and unpaid at the time of the making of
such Credit Advance), as reduced by any payments by or on behalf of Barton to
the Enhancement Bank in reimbursement or repayment of such Credit Advance
(less any amount allocable to such accrued and unpaid Earned Return); and (c)
the Investment Amount of any other Tranche owned by Barton shall mean the
Investment Amount related thereto minus the portion thereof described in the
foregoing clauses (a) and (b), if any, calculated in accordance with such
clauses (a) and (b), as applicable. The Agent shall provide the Servicer and
the Trustee with a statement, at least 5 days before each Distribution Date,
setting forth (i) the Pass-Through Rate applicable to the Interest Period
ending on such Distribution Date, (ii) the Program Fee Rate applicable to the
Interest
43
Period ending on such Distribution Date, and (iii) if any Series 1995-5
Certificate is owned by a Person other than Barton, the Barton Rate applicable
to each Tranche for the Interest Period ending on such Distribution Date.
SECTION 4.15. Yield Protection. (a) If (i) Regulation D or
(ii) any Regulatory Change (other than any Regulatory Change relating to
taxes) occurring after the date hereof:
(A) shall subject any Affected Party to any duty or other charge
with respect to any Tranche owned by or funded by it, or any obligations
or right to provide funding therefor; or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Federal
Reserve Board, but excluding any reserve included in the determination
of Earned Return), special deposit or similar requirement against assets
of any Affected Party, deposits or obligations with or for the account
of any Affected Party or with or for the account of any affiliate (or
entity deemed by the Federal Reserve Board to be an affiliate) of any
Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required
or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Tranche owned
or funded by any Affected Party, or its obligations or rights, if any,
to provide funding therefor;
and the results of any of the foregoing is or would be:
(x) to increase the cost to (or in the case of Regulation D
referred to above, to impose a cost on) (i) an Affected Party of funding
or making or maintaining any Investment Amount, any purchases,
reinvestments, or loans or other extensions of credit under the Standby
Purchase Facility, any Credit Advance, or any commitment of such
Affected Party with respect to any of the foregoing, in any such case in
connection with the Series 1995-5 Certificates, or (ii) the Agent for
continuing its or the Seller's relationship with Barton in connection
with the Series 1995-5 Certificates;
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Series Supplement or the Series 1995-5
Certificates, or under the Standby Purchase Facility or the Enhancement
Agreement with respect thereto; or
(z) in the sole determination of such Affected Party, to reduce
the rate of return on the capital of an Affected Party as a
44
consequence of its obligations with respect to the transactions
contemplated hereby and by the Series 1995-5 Certificates or arising in
connection herewith to a level below that which such Affected Party
could otherwise have achieved;
then for the period commencing thirty days after demand by such Affected Party
(which demand shall be accompanied by a statement setting forth the basis of
such demand), the Seller agrees to pay directly to such Affected Party such
additional amount or amounts as will compensate such Affected Party for such
additional or increased cost or such reduction, provided, however, that (A) no
such amounts shall accrue with respect to increased costs until 30 days after
a notice, which shall include a description of the event giving rise to the
increased cost, a description of the party or parties affected, a description
of the method used by the claimant to determine the increased cost item, and a
statement of the amount of the increased costs per annum and for the remainder
of the transaction (an "Increased Cost Notice") has been received, and no
payment shall be made in respect of accrued amounts until 60 days after the
date of the Increased Cost Notice, (B) Barton will use reasonable commercial
efforts to replace the Bank which is the Affected Party with another Bank (a
"Replacement Bank") which would not reasonably expect to make any increased
cost claims and the selection of such Replacement Bank will be subject to the
approval of the Seller, (C) nothing contained in this Section 4.15 shall
require the Seller to pay any amount in respect of Regulation D or any
Regulatory Change which has not actually caused any of the results enumerated
in Section 4.15(a) (x), (y) or (z) to occur in respect of an Affected Party,
(D) the Seller shall not be required to pay any amount pursuant to this
Section 4.15 to any Enhancement Bank or Bank to which Societe Generale has
assigned all or any part of its obligations under the Enhancement Agreement or
the Standby Purchase Facility greater than the amount that would have been due
to Societe Generale hereunder if it had not so assigned its obligations,
unless the Seller has consented to such assignee, which consent shall not be
unreasonably withheld, and (E) any payment required to be made by the Seller
pursuant to this Section 4.15 shall only be from (i) Excess Servicing as
specified in Section 4.10(c), and (ii) amounts on deposit in the Subordination
Account as specified in Section 4.07(d) and shall only be made after payment
in full of any amount that the Seller is obligated to deposit in the
Collection Account pursuant to the Agreement and this Series Supplement.
(b) Each Affected Party will promptly notify the Seller and the
Agent of any event of which it has knowledge which will entitle such Affected
Party to compensation pursuant to this Section 4.15.
(c) In determining any amount provided for or referred to in this
Section 4.15, an Affected Party may use any reasonable averaging and
attribution methods that it shall deem applicable. Any Affected Party when
making a claim under this Section 4.15 shall submit to the Seller a statement
as to such increased cost or reduced return (including calculation thereof in
reasonable detail) signed by an accounting officer of such Affected
45
Party, which statement shall, in the absence of manifest error, be conclusive
and binding upon the Seller.
ARTICLE V
Distributions and Reports
to Series 1995-5 Certificateholders
SECTION 5.01. Distributions. (a) On each Distribution Date,
commencing with the Initial Distribution Date (i) the Trustee shall distribute
to the Series 1995-5 Certificateholder of record on the preceding Record Date
(other than as provided in Section 12.02 of the Agreement respecting a final
distribution) such Certificateholders' pro rata share (based on the aggregate
fractional undivided interests represented by the Series 1995-5 Certificates
held by such Certificateholder) of the amounts on deposit in the Series 1995-5
Accounts as is payable to the Series 1995-5 Certificateholders on such
Distribution Date pursuant to Section 4.07; provided, however, that (i) if
Barton does not own 100% of the Series 1995-5 Certificates, distributions in
respect of interest, including Monthly Interest, Additional Interest,
Carry-over Amounts and Additional Carry-over Amounts, shall be made to Series
1995-5 Certificateholders taking into account the principal amount of, and
Barton Rate applicable to, each Tranche of Series 1995-5 Certificates owned by
Barton and each other Series 1995-5 Certificateholder; (ii) payments pursuant
to Section 4.15 and 10.01 shall be made to the Series 1995-5
Certificateholders or Affected Parties or the Agent, as the case may be,
entitled thereto; and (iii) the Trustee shall distribute the Program Fee to
Barton.
(b) Except as provided in Section 12.02 of the Agreement with
respect to a final distribution, distributions to Series 1995-5
Certificateholders hereunder shall be made by check mailed to each Series
1995-5 Certificateholder at such Certificateholders' address appearing in the
Certificate Register without presentation or surrender of any Series 1995-5
Certificate or the making of any notation thereon; provided, however, that,
with respect to any Series 1995-5 Certificateholder holding at least
$1,000,000 original principal amount of the Series 1995-5 Certificates, such
distributions shall be made by wire transfer, in immediately available funds
to the account of such holder at a bank or other entity having appropriate
facilities therefor, if such Series 1995-5 Certificateholders shall have
provided to the Servicer appropriate instructions prior to such Distribution
Date; provided further, that all distributions to Barton as a Series 1995-5
Certificateholder shall be made by wire transfer, in immediately available
funds, to such account as Barton shall have designated to the Servicer prior
to the related Distribution Date.
SECTION 5.02. Reports and Statements to Series 1995-5
Certificateholders. (a) At least two Business Days prior to each
Distribution Date, commencing with the Initial Distribution Date, the
Servicer will provide to the Trustee, and on each such Distribution Date,
46
the Trustee shall forward to each Series 1995-5 Certificateholder, a statement
substantially in the form of Exhibit B prepared by the Servicer setting forth
certain information relating to the Trust and the Series 1995-5 Certificates.
(b) A copy of each statement provided pursuant to paragraph (a)
will be made available for inspection at the Corporate Trust Office.
(c) On or before January 31 of each calendar year, beginning with
calendar year 1996, the Trustee shall furnish or cause to be furnished to each
Person who at any time during the preceding calendar year was a Series 1995-5
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the statement to Series
1995-5 Certificateholders as set forth in paragraph (a) above, aggregated for
such calendar year or the applicable portion thereof during which such Person
was a Series 1995-5 Certificateholder, together with other information as is
required to be provided by an issuer of indebtedness under the Internal
Revenue Code and such other customary information as is necessary to enable
the Series 1995-5 Certificateholders to prepare their tax returns. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Internal Revenue Code as from time to time
in effect.
ARTICLE VI
Early Amortization Events
SECTION 6.01. Additional Early Amortization Events. The
occurrence of any of the following events shall be deemed to be an Early
Amortization Event solely with respect to Series 1995-5:
(a) on any Determination Date, the average of the Monthly Payment
Rates for the three preceding Collection Periods is less than 20%;
(b) on any Determination Date, the Available Subordinated Amount
for the next Distribution Date will be less than the Required
Subordinated Amount on such Determination Date, after giving effect to
the distributions to be made on the next Distribution Date;
(c) any Service Default with respect to Series 1995-5 occurs;
(d) on any Determination Date, as of the last day of the preceding
Collection Period, the aggregate amount of Principal Receivables
relating to Used Vehicles exceeds 20% of the Pool Balance on such last
day;
47
(e) any Carry-over Amount or Additional Carry-over Amount
is outstanding on two consecutive Distribution Dates;
(f) the outstanding principal amount of the Series 1995-5
Certificates is not repaid by the Expected Payment Date;
(g) the Trust shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or the Trust shall
file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar
applicable Federal law, or shall consent to the filing of any such
petition, answer, or consent; or the Trust shall appoint, or consent to
the appointment of, a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or
insolvency of it or of any substantial part of its property; or the
Trust shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become
due;
(h) any order for relief against the Trust shall have been entered
by a court having jurisdiction in the premises under any chapter of the
Federal bankruptcy laws, and such order shall have continued
undischarged or unstayed for a period of 60 days; or a decree or order
by a court having jurisdiction in the premises shall have been entered
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of the Trust under any other
similar applicable Federal law, and such decree or order shall have
continued undischarged or unstayed for a period of 120 days; or a decree
or order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator, or other similar official in bankruptcy or insolvency of
the Trust or of any substantial part of its property, or for the winding
up or liquidation of its affairs, shall have been entered, and such
decree or order shall have remained in force undischarged or unstayed
for a period of 120 days.
The Trustee agrees that upon gaining knowledge of the occurrence
of any event described in Section 9.01 of the Agreement or Section 6.01 of
this Series Supplement it shall (a) promptly provide notice to the Rating
Agencies of the occurrence of such event and (b) notify the Series 1995-5
Certificateholders of the occurrence of such event within 45 days of the
expiration of the applicable grace period, if any. In the case of any event
described in Sections 9.01(f) or (g) of the Agreement or Section 6.01(c) of
this Series Supplement, an Early Amortization Event with respect to Series
1995-5 will be deemed to have occurred only if, after the applicable grace
period described in such Sections, if any, either the Trustee or the Series
1995-5 Certificateholders evidencing more than 50% of the aggregate unpaid
principal amount of the Series 1995-5 Certificates by written notice to the
Seller and the Servicer (and the Trustee, if given by
48
Series 1995-5 Certificateholders) declare that an Early Amortization Event has
occurred as of the date of such notice. In the case of any other Early
Amortization Event, such Early Amortization Event will be deemed to have
occurred immediately upon the occurrence of such event, without any notice or
other action on the part of the Trustee or the Series 1995-5
Certificateholders.
In the case of any Early Amortization Event described in Sections
9.01(a), (f) or (g) of the Agreement or this Section 6.01, other than Sections
6.01(f), (g) or (h), provided that (i) no other Early Amortization Event
(other than an Early Amortization Event which has resulted in an Early
Amortization Period which has terminated as described in clause (c) or clause
(d) of the definition thereof in this Series Supplement) has occurred and (ii)
the scheduled termination of the Revolving Period has not occurred, the
Trustee agrees that it shall request written confirmation from Standard &
Poor's that the termination of the Early Amortization Period caused by the
occurrence of such Early Amortization Event will not result in the downgrading
or withdrawal of such entity's rating of the Series 1995-5 Certificates.
The Trustee further agrees that, where applicable, it shall
promptly notify the Series 1995-5 Certificateholders that it has received the
written confirmation referred to in the preceding paragraph, and that the
Series 1995-5 Certificateholders may elect to terminate the related Early
Amortization Period.
ARTICLE VII
Optional Repurchase and Remarketing
SECTION 7.01. Optional Repurchase. (a) On any Distribution Date
occurring after the date on which the Invested Amount is reduced to
$25,000,000 or less, the Seller shall have the option to purchase the entire
Series 1995-5 Certificateholders' Interest, at a purchase price equal to the
Reassignment Amount for such Distribution Date.
(b) The Seller shall give the Servicer and the Trustee at least 10
days' prior written notice of the Distribution Date on which the Seller
intends to exercise such purchase option. Not later than 12:00 noon, New York
City time, on such Distribution Date the Seller shall deposit the Reassignment
Amount into the Collection Account in immediately available funds. Such
purchase option is subject to payment in full of the Reassignment Amount. The
Reassignment Amount shall be distributed as set forth in Section 8.01(b).
(c) If at the time the Seller exercises its purchase option
hereunder the Seller's long-term unsecured debt has a rating lower than Baa3
by Moody's, the Seller shall deliver to the Trustee on such Distribution Date
an Opinion of Counsel (which must be an independent
49
outside counsel) to the effect that, in reliance on certain certificates to
the effect that the Series 1995-5 Certificateholders' Interest purchased by
the Seller constitutes fair value for the consideration paid therefor and as
to the solvency of the Seller, the purchase of the Series 1995-5
Certificateholders' Interest would not be considered a fraudulent conveyance
under applicable law.
SECTION 7.02. Remarketing. If the Seller receives notice that it
is obligated (or will, after the passage of time, become obligated) to make
any payment to any 1995-5 Certificateholder, any Affected Party or the Agent
pursuant to Section 4.15(a) or Section 10.01(a) hereof, the Agent (on behalf
of such Series 1995-5 Certificateholder) shall use reasonable commercial
efforts to sell or otherwise dispose of the applicable Series 1995-5
Certificates in transactions exempt from registration under the Securities Act
(a "Remarketing") for a period of 15 days after the date of such notice (the
"Remarketing Period") to a Person who would not be subject to increased costs
that could be claimed under Section 4.15(a) for a price equal to the unpaid
principal amount thereof plus accrued interest plus any increased costs under
Section 4.15(a) that have been incurred but unpaid on the date the sale is
closed; provided, however, that for any offer received during the Remarketing
Period, the sale must be completed within 15 days of the end of the
Remarketing Period or such other period of time that shall be acceptable to
Seller. If no offer is received during the Remarketing Period, or if the sale
relating to an offer is not completed within 15 days (or such other period of
time that shall be acceptable to Seller) then the Agent (on behalf of the
applicable Series 1995-5 Certificateholder) shall offer to sell the applicable
Series 1995-5 Certificates owned by it to the Seller for a price equal to the
unpaid principal amount thereof plus accrued interest plus any increased costs
under Section 4.15(a) that have been incurred but unpaid on the date the sale
is closed; provided, however, that the Seller shall have no obligation to
accept such offer, but if such offer is accepted then the Seller shall shall
have 15 days to close the sale.
ARTICLE VIII
Final Distributions
SECTION 8.01. Sale of Certificateholders' Interest Pursuant to
Section 2.03 of the Agreement; Distributions Pursuant to Section 7.01 of this
Series Supplement or Section 2.03 or 12.02(c) of the Agreement. (a) The amount
to be paid by the Seller to the Collection Account with respect to Series
1995-5 in connection with a purchase of the Series 1995-5 Certificateholders'
Interest pursuant to Section 2.03 of the Agreement shall equal the
Reassignment Amount for the Distribution Date on which such repurchase occurs.
(b) With respect to the Reassignment Amount deposited into
the Collection Account pursuant to Section 7.01 or 8.01 of this Series
50
Supplement or Section 2.03 of the Agreement or any Termination Proceeds
deposited into the Collection Account pursuant to Section 12.02(c) of the
Agreement, the Trustee shall, not later than 12:00 noon, New York City time,
on the Distribution Date on which such amounts are deposited (or, if such date
is not a Distribution Date, on the immediately following Distribution Date)
(in the priority set forth below): (i) first, (x) deposit the Invested Amount
on such date into the Principal Funding Account and (y) deposit the amount of
accrued and unpaid interest on the unpaid balance of the Series 1995-5
Certificates, plus the amount of Additional Interest, if any, for such
Distribution Date and any Additional Interest, Carry-over Amount or Additional
Carry-over Amount previously due but not paid to Series 1995-5
Certificateholders on any prior Distribution Date, up to the Reassignment
Amount for Series 1995-5, into the Collection Account, with such funds
designated by the Trustee as being held for the benefit of the Series 1995-5
Certificateholders, and (ii) second, pay the remainder of any Termination
Proceeds to the Seller.
(c) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the entire amount deposited in the Principal
Funding Account and the Collection Account pursuant to Section 7.01 or 8.01
and all other amounts on deposit therein in respect of the Series 1995-5
Certificates shall be distributed in full to the Series 1995-5
Certificateholders on such date and any distribution made pursuant to
paragraph (b) above shall be deemed to be a final distribution pursuant to
Section 12.02 of the Agreement with respect to Series 1995-5.
SECTION 8.02. Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables Pursuant to Section 9.02 of the Agreement. (a)
Not later than 12:00 noon, New York City time, on the Distribution Date
following the date on which the Insolvency Proceeds are deposited into the
Collection Account pursuant to Section 9.02(b) of the Agreement, the Trustee
shall first (in each case, after giving effect to any deposits and
distributions otherwise to be made on such Distribution Date) deduct an amount
equal to the Invested Amount on such Distribution Date from the portion of the
Insolvency Proceeds allocated to Allocable Principal Collections and deposit
such amount in the Principal Funding Account; provided that the amount of such
deposit shall not exceed the product of (x) the portion of the Insolvency
Proceeds allocated to Allocable Principal Collections and (y) 100% minus the
Excess Seller's Percentage with respect to the related Collection Period. The
remainder of the portion of the Insolvency Proceeds allocated to Allocable
Principal Collections shall be allocated to the Seller's Interest and shall be
released to the Seller on such Distribution Date.
(b) Not later than 12:00 noon, New York City time, on such
Distribution Date, the Trustee shall first (in each case, after giving effect
to any deposits and distributions otherwise to be made on such Distribution
Date) deduct an amount equal to the sum of (i) Monthly Interest for such
Distribution Date, (ii) any Monthly Interest previously due but not
distributed on a prior Distribution Date, (iii) the amount of Additional
51
Interest, if any, for such Distribution Date and any Additional Interest
previously due but not distributed on a prior Distribution Date, (iv) any
Carry-over Amount for such Distribution Date and any Carry-over Amount
previously due but not distributed to the Series 1995-5 Certificateholders on
a prior Distribution Date and (v) the amount of any Additional Carryover
Amount for such Distribution Date and any Additional Carry-over Amount
previously due but not distributed to the Series 1995-5 Certificateholders on
a prior Distribution Date, from the portion of the Insolvency Proceeds
allocated to Allocable Non-Principal Collections and deposit such amount in
the Collection Account with such funds designated by the Trustee as being held
for the benefit of the Series 1995-5 Certificateholders; provided that the
amount of such distribution shall not exceed (x) the product of (A) the
portion of the Insolvency Proceeds allocated to Allocable Non-Principal
Collections and (B) 100% minus the Excess Seller's Percentage. The remainder
of the portion of the Insolvency Proceeds allocated to Allocable Non-Principal
Collections shall be allocated to the Seller's Interest and shall be released
to the Seller on such Distribution Date.
(c) Notwithstanding anything to the contrary in this Series
Supplement or in the Agreement, the entire amount deposited in the Principal
Funding Account and the Collection Account pursuant to this Section and all
other amounts on deposit therein in respect of the Series 1995-5 Certificates
shall be distributed in full to the Series 1995-5 Certificateholders on the
Distribution Date on which funds are deposited pursuant to this Section (or,
if not so deposited on a Distribution Date, on the immediately following
Distribution Date) and any distribution made pursuant to this Section shall be
deemed to be a final distribution pursuant to Section 12.02 of the Agreement
with respect to Series 1995-5.
ARTICLE IX
The Series 1995-5 Certificates
SECTION 9.01. The Series 1995-5 Certificates.
(a) Notwithstanding anything to the contrary in the Agreement, the
Series 1995-5 Certificates will be Registered Certificates in definitive form,
substantially in the form of Exhibit A hereto.
(b) The Series 1995-5 Certificates shall bear the legend set forth
in Exhibit D-1 to the Agreement.
SECTION 9.02. Registration of Transfer. In addition to the
requirements set forth in Section 6.04 of the Agreement, in the event that
registration of a transfer of a Series 1995-5 Certificate is to be made in
reliance upon an exemption from the registration requirements under the Act,
such registration of transfer shall not be effected until the transferor or
the transferee shall deliver, at its own expense, to the Seller, the
52
Servicer and the Trustee, an investment letter from the transferee,
substantially in the form of Exhibit C hereto.
ARTICLE X
Indemnities
SECTION 10.01. Indemnities of Servicer and Seller. The Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer hereunder.
(a) Subject to Section 10.01(c) the Seller shall indemnify, defend
and hold harmless the Series 1995-5 Certificateholders, any other
Affected Party and the Agent from and against any taxes that may at any
time be asserted against any Series 1995-5 Certificateholder, any
Affected Party or the Agent with respect to the transactions
contemplated herein, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege, or
license taxes (but excluding any taxes imposed on the net income of any
such Person) and costs and expenses in defending against the same;
provided, however, that any of the Series 1995-5 Certificateholders, or
any Affected Party or the Agent (or any assignee of any of the
foregoing) that is organized under the laws of a jurisdiction other than
the United States, any State thereof or the District of Columbia (a
"Non-U.S. Party") shall deliver to the Servicer and the Seller (i) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224 or successor applicable form, as the case may be, and (ii)
a duly completed Internal Revenue Service Form W-8 or W-9 or successor
applicable form, and provided further that such indemnity shall not
apply in the case of a Non-U.S. Party submitting said Form 1001 to the
extent that the applicable treaty does not provide for a complete
exemption from withholding taxes to be imposed on payments to such
Non-U.S. Party. Such forms shall be delivered by each Non-U.S. Party on
or before the Closing Date (or, in the case of an assignee, on or before
the date such Non-U.S. Party becomes an assignee) and on or before the
date, if any, such Non-U.S. Party changes the location of the office to
which payments are required to be made to it hereunder. Each Non-U.S.
Party shall be deemed to have also agreed to deliver to the Servicer and
the Seller two further copies of said Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the
most recent form previously delivered, and such extensions or renewals
thereof as may reasonably be requested by the Seller or the Servicer,
unless in any such case an event (including without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which such delivery would otherwise be required which renders all such
53
forms inapplicable or which would prevent such Non-U.S. Party from duly
completing and delivering such form. Such Non-U.S. Party shall certify
(x) in the case of Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any
United States Federal income taxes and (y) in the case of a Form W-8 or
W-9, that it is entitled to an exemption from United States backup
withholding tax. The Seller shall not be required to indemnify any
Non-U.S. Party in respect of United States Federal withholding taxes to
the extent the liability to pay such taxes would not have arisen but for
a failure by such Non-U.S. Party to comply with the requirements of this
paragraph.
(b) Subject to Section 10.01(c), each of the Servicer and the
Seller (each an "Indemnifying Person") shall indemnify, defend, and hold
harmless the Series 1995-5 Certificateholders, any Affected Party and
the Agent from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss,
claim, damage, or liability arose out of, or was imposed upon any Series
1995-5 Certificateholder, such Affected Party or the Agent as a result
of:
(i) the inaccuracy of such Indemnifying Person's
representations and warranties herein or in the Agreement;
(ii) the failure by such Indemnifying Person to comply with
any applicable law, rule or regulation in connection with the
Receivables or the offering, issuance, sale and delivery of the
Series 1995-5 Certificates.
(c) Any payment required to be made by the Seller pursuant to this
Section 10.01 shall only be made from (i) Excess Servicing as specified in
Section 4.10(c) and (ii) amounts on deposit in the Subordination Account as
specified in Section 4.07(d) and shall only be made after payment in full of
any amount that the Seller is obligated to deposit in the Collection Account
pursuant to the Agreement and this Series Supplement.
(d) For purposes of this Section 10.01, in the event of the
termination of the rights and obligations of Chrysler Credit Corporation (or
any successor thereto) as Servicer, or a resignation by such Servicer pursuant
to the Pooling and Servicing Agreement, such Servicer shall be deemed to be
the Servicer pending appointment of a successor Servicer.
(e) Indemnification under this Section 10.01 shall survive the
termination of this Series Supplement and shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Seller or the Servicer
shall have made any indemnity payments pursuant to this Section and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Seller or the Servicer, as
applicable, without interest.
54
ARTICLE XI
Miscellaneous Provisions
SECTION 11.01. Certain Permitted Actions; Amendments to
the Agreement; Additional Covenants. (a) Notwithstanding anything to
the contrary in the Agreement, funds on deposit in the Collection Account
may be invested in any Eligible Investments (as that term is defined in this
Series Supplement).
(b) Notwithstanding anything to the contrary in the Agreement,
including Section 2.07(c) thereof, the Seller shall not be required to make
any deposit to the Collection Account in respect of the Repurchased
Receivables Price of any receivables repurchased by the Seller from the Trust
pursuant to such Section.
(c) Notwithstanding anything to the contrary contained herein or
in the Agreement, the Seller shall have the right to require the reassignment
to it of all the Trust's right, title and interest in, to and under the
Receivables then existing and thereafter created, all monies due or to become
due and all amounts received with respect thereto and all proceeds thereof in
or with respect to the Accounts ("Automatic Removed Accounts") designated by
the Seller, upon satisfaction of the following conditions: (a) on or before
the fifth business day immediately preceding the date upon which such Accounts
are to be removed, the Seller shall have given the Trust, each Enhancement
Provider and the Rating Agencies a Removal Notice specifying the date for
removal of the Automatic Removed Accounts (the "Automatic Removal Date"); (b)
on or prior to the date that is five Business Days after the Automatic Removal
Date, the Seller shall have delivered to the Trustee a computer file or
microfiche or written list containing a true and complete list of the
Automatic Removed Accounts specifying for each such Account, as of the removal
notice date, its account number and the aggregate amount of Receivables
outstanding in such Account; (c) the Seller shall have represented and
warranted as of each Automatic Removal Date that the list of Automatic Removed
Accounts delivered pursuant to clause (b) above, as of the Automatic Removal
Date, is true and complete in all material respects; (d) the Trustee shall
have received confirmation from each Rating Agency that such removal will not
result in a reduction or withdrawal of such Rating Agency's rating of any
outstanding Series or Class of Certificates; (e) the Seller shall have
delivered to the Trustee, each Rating Agency and any Enhancement Providers an
officers' certificate, dated the Automatic Removal Date, to the effect that
the Seller reasonably believes that such removal will not cause an early
amortization event to occur with respect to any Series; and (f) the Seller
shall have delivered to the Trustee, each Rating Agency and any Enhancement
Providers a Tax Opinion, dated the Automatic Removal Date, with respect to
such removal.
55
Upon satisfaction of the above conditions, on the Automatic
Removal Date all the right, title and interest of the Trust in and to the
Receivables arising in the Automatic Removed Accounts, all monies due and to
become due and all amounts received with respect thereto and all proceeds
thereof shall be deemed removed from the Trust for all purposes.
(d) Notwithstanding anything to the contrary herein or in the
Agreement, subject to the other limitations described in Section 4.03 of the
Agreement, CCC need not deposit collections with respect to any Collection
Period in the Collection Account until the related Distribution Date.
(e) Unless otherwise agreed to by the Rating Agencies,
notwithstanding anything to the contrary herein or in the Agreement, the
Seller may from time to time, at its discretion, and subject only to the
limitations specified in this paragraph, designate Additional Accounts to be
added to the Trust. (Additional Accounts designated to be added to the Trust
in accordance with the provisions of this Section 11.01(e) are referred to
herein as "Automatic Additional Accounts".) On the Addition Date with respect
to any Automatic Additional Accounts, the Trust shall purchase the Receivables
in such Automatic Additional Accounts (and such Automatic Additional Accounts
shall be deemed to be Accounts for purposes of the Agreement) as of the close
of business on the applicable Additional Cut-Off Date, subject to the
satisfaction of the following conditions:
(i) such Automatic Additional Accounts shall be Eligible
Accounts;
(ii) the Seller shall, to the extent required by Section 4.03 of
the Agreement, have deposited in the Collection Account all Collections
with respect to such Automatic Additional Accounts since the Additional
Cut-Off Date;
(iii) no selection procedures believed by the Seller to be adverse
to the interests of the Series 1995-5 Certificateholders were used in
selecting such Automatic Additional Accounts;
(iv) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to CFC, CCC or the Seller shall
have occurred nor shall the transfer of the Receivables arising in the
Automatic Additional Accounts to the Trust have been made in
contemplation of the occurrence thereof;
(v) the addition of the Receivables arising in the Automatic
Additional Accounts shall not cause an early amortization event or any
event that, after the giving of notice or the lapse of time, would
constitute a early amortization event to occur with respect to any
Series;
(vi) on or before each Addition Date with respect to Automatic
Additional Accounts, the Seller shall have delivered to the Trustee
56
and the Rating Agencies (A) an Opinion of Counsel with respect to the
Receivables in the Automatic Additional Accounts substantially in the
form of Exhibit G-2 to the Agreement and (B) a Tax Opinion with respect
to such addition;
(vii) within ten Business Days of the date on which any such
Receivables are added to the Trust, the Seller shall have delivered to
the Trustee a written assignment and a computer file or a microfiche
list containing a true and complete list of the related Automatic
Additional Accounts specifying for each such Account its account number,
the collection status, the aggregate amount outstanding in such Account
and the aggregate amount of Principal Receivables outstanding in such
Account; and
(viii) the Seller shall have delivered to the Trustee an Officer's
Certificate of the Seller, dated the Addition Date, to the effect that
conditions (i) through (v) and (vii) above have been satisfied.
The Seller hereby represents and warrants to the Trust as of the
related Addition Date as to the matters relating to it set forth in paragraphs
(iii) and (iv) above and that the file or list described below is, as of the
applicable Additional Cut-Off Date, true and complete in all material
respects.
In connection with the designation of Automatic Additional Account
to be added to the Trust, the Seller shall deliver to the Trustee (i) the
computer file or microfiche list required to be delivered pursuant to Section
2.01 of the Agreement with respect to such Automatic Additional Accounts and
(ii) a duly executed, written Assignment (including an acceptance by the
Trustee for the benefit of the Certificateholders), substantially in the form
of Exhibit B (the "Assignment").
Unless each Rating Agency otherwise consents, the number of
Automatic Additional Accounts added to the Trust with respect to any of the
three consecutive Collection Periods beginning in January, April, July and
October of each calendar year shall not exceed 8% of the number of Accounts as
of the first day of the calendar year during which such Collection Periods
commence and the number of Automatic Additional Accounts designated during any
such calendar year shall not exceed 20% of the number of Accounts as of the
first day of such calendar year. On or before the first business day of each
Collection Period beginning in January, April, July and October of each
calendar year, the Seller shall have requested and obtained notification from
each Rating Agency of any limitations to the right of the Seller to designate
Eligible Accounts as Automatic Additional Accounts during any period which
includes such Collection Period. To the extent that Automatic Additional
Accounts have been added to the Trust during the three consecutive Collection
Periods ending in the calendar month prior to such date, on or before January
31, April 30, July 31, October 31 of each calendar year, the Trustee shall
have
57
received confirmation from each Rating Agency that the addition of all
Automatic Additional Accounts included as Accounts during the three
consecutive Collection Periods ending in the calendar month prior to such date
shall not have resulted in any applicable Rating Agency reducing or
withdrawing its rating of any outstanding Series or Class of Certificates. If
such Rating Agency confirmation with respect to any Automatic Additional
Accounts is not so received, such Automatic Additional Accounts will be
removed from the Trust.
(f) Each Holder of a Series 1995-5 Certificate, by such Holder's
acceptance thereof, will be deemed to have consented to an amendment to the
Agreement that incorporates the provisions of Sections 11.01(a) and 11.01(b),
11.01(c), 11.01(d) and 11.01(e), it being understood that no such amendment
shall be effective unless and until each Series of Investor Certificates
issued prior to October 20, 1994 shall no longer be outstanding or shall have
consented to such amendment in accordance with the Agreement.
(g) Except for the conveyance hereunder to the Trustee, the Seller
will not sell, pledge, assign or transfer to any other Person any rights it
might have to funds on deposit in the Reserve Fund, the Principal Funding
Account, the Excess Funding Account, the Yield Supplement Account or the
Subordination Account, or Investment Proceeds with
respect thereto.
SECTION 11.02. Ratification of Agreement. As supplemented by this
Series Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Series Supplement shall be read,
taken and construed as one and the same instrument.
SECTION 11.03. Counterparts. This Series Supplement may be
executed in two or more counterparts (and by different parties on separate
counterparts) each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 11.04. Dealer Concentrations. So long as this Series
1995-5 shall be outstanding, on the last day of each Collection Period, the
Servicer shall determine if the aggregate amount of Principal Receivables due
from any Dealer or group of affiliated Dealers on such date is greater than
1.5% of the Pool Balance on such date. The Servicer shall promptly provide the
Trustee a report setting forth the basis for such determination. The Trustee
upon request from any Rating Agency will make such report available to such
Rating Agency.
58
SECTION 11.05. GOVERNING LAW. THIS SERIES SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Series Supplement to be duly executed by their respective officers
as of the day and year first above written.
U.S. AUTO RECEIVABLES
COMPANY, Seller,
by /s/ D.M. Cantwell
-------------------------------
Name:
Title:
CHRYSLER CREDIT CORPORATION,
Servicer,
by /s/ D.M. Cantwell
-------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY, Trustee,
by /s/ Neil B. Witoff
-------------------------------
Name: NEIL B. WITOFF
Title: Assistant Vice President
59
Societe Generale, Chicago Branch, as Agent, hereby joins in this Agreement for
the purpose of agreeing to perform the duties of the Agent hereunder. This
Agreement shall be binding upon any successor to Societe Generale, Chicago
Branch, as Agent.
Agreed and Accepted by
SOCIETE GENERALE, Chicago
Branch, as Agent,
by /s/ Bradley P. Summers
-------------------------
Name: Bradley P. Summers
Title: Vice President
EXHIBIT A
[Form of Certificate]
FACE OF CERTIFICATE
Initial
REGISTERED Invested Amount: 1/<F1>
$250,000,000
Certificate No. R-1
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT OR (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
CARCO AUTO LOAN MASTER TRUST
FLOATING RATE AUTO LOAN
ASSET BACKED CERTIFICATES, SERIES 1995-5
evidencing a fractional undivided interest in certain
assets of the
CARCO AUTO LOAN MASTER TRUST
- --------
<F1>1/ Denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
2
the corpus of which consists primarily of wholesale (i.e., dealer floorplan)
receivables (the "Receivables") generated from time to time in the ordinary
course of business in a portfolio of revolving financing arrangements (the
"Accounts") of Chrysler Credit Corporation meeting certain eligibility
criteria. This certificate (a "Certificate") does not represent an interest
in, or obligation of, U.S. Auto Receivables Company (the "Seller" or "USA"),
Chrysler Credit Corporation or any affiliate thereof.
The Certificates may not be acquired by or for the account of
any employee benefit plan, trust or account, including an individual
retirement account, that is subject to the Employee Retirement Income Security
Act of 1974, as amended, or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity whose underlying
assets include plan assets by reason of a plan's investment in such entity (a
"Benefit Plan"). By accepting and holding this Certificate, the Holder hereof
shall be deemed to have represented and warranted that it is not a Benefit
Plan. By acquiring any interest in this Certificate, the applicable
Certificate Owner or Owners shall be deemed to have represented and warranted
that it or they are not Benefit Plans.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
referred to on the reverse side hereof or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS
3
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
IN WITNESS WHEREOF, the Seller has caused this Certificate to
be duly executed.
U.S. AUTO RECEIVABLES COMPANY,
by _______________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the within-mentioned Pooling and
Servicing Agreement.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee,
by __________________
Authorized Officer
4
REVERSE OF CERTIFICATE
This certifies that Barton Capital Corporation (the "Series
1995-5 Certificateholder"), is the registered owner of a fractional undivided
interest in certain assets of the CARCO AUTO LOAN MASTER TRUST (the "Trust")
created pursuant to a Pooling and Servicing Agreement dated as of May 31,
1991, as assigned by Chrysler Auto Receivables Company to U.S. Auto
Receivables Company (the "Seller") on August 8, 1991 (as assigned and as
amended and supplemented from time to time, the "P&S"), as supplemented by the
Series 1995-5 Supplement dated as of November 30, 1995, (the "Series
Supplement"), among the Seller, Chrysler Credit Corporation, as servicer, and
Manufacturers and Traders Trust Company, as trustee (the "Trustee") that are
allocated to the Series 1995-5 Certificateholders' Interest pursuant to the
P&S and the Series Supplement. The P&S and the Series Supplement are
hereinafter collectively referred to as the Pooling and Servicing Agreement.
The corpus of the Trust will include (a) all of the Seller's right, title and
interest in, to and under the Receivables in each Account and all Collateral
Security with respect thereto owned by the Seller at the close of business on
the Cut-Off Date, in the case of the Initial Accounts, and on the applicable
Additional Cut-Off Date, in the case of Additional Accounts, and all monies
due or to become due and all amounts received with respect thereto and all
proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Michigan and Recoveries) thereof, (b) all of the
Seller's rights, remedies, powers and privileges with respect to such
Receivables under the Receivables Purchase Agreement, (c) all of the Seller's
right, title and interest in, to and under the Receivables in each Account
(other than any newly created Receivables in any Designated Account) and all
Collateral Security with respect thereto owned by the Seller at the close of
on each Transfer Date and not theretofore conveyed to the Trust, all monies
due or to become due and all amounts received with respect thereto and all
proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Michigan and Recoveries) thereof, (d) all monies on
deposit in, and Eligible Investments credited to, the Collection Account or
any Series Account, (e) any Enhancements and (f) all other assets and
interests constituting the Trust. In addition to the Certificates, the
Seller's Certificate has been issued pursuant to the Pooling and Servicing
Agreement which represents the Seller's Interest in the Trust. The Seller's
Certificate represents the interest in the Trust Assets not represented by the
Investor Certificates.
5
The Receivables consist of advances made directly or indirectly
by Chrysler Credit Corporation to domestic automobile dealers franchised by
Chrysler Corporation or any other automobile manufacturers.
Subject to the terms and conditions of the Agreement, the
Seller may from time to time direct the Trustee, on behalf of the Trust, to
issue one or more new Series of Investor Certificates, which will represent
fractional undivided interests in certain of the Trust Assets.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement to which, as
amended and supplemented from time to time, the Series 1995-5
Certificateholder by virtue of the acceptance hereof assents and is bound.
Although a summary of certain provisions of the Pooling and Servicing
Agreement is set forth below, this Certificate does not purport to summarize
the Pooling and Servicing Agreement and reference is made to the Pooling and
Servicing Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee. A copy of the Pooling and Servicing
Agreement (without schedules and exhibits) may be requested from the Trustee
by writing to the Trustee at One M&T Plaza, Buffalo, New York 14203,
Attention: Corporate Trust Department. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Pooling and Servicing Agreement.
The Seller has entered into the Pooling and Servicing Agreement
and the Series 1995-5 Certificates have been (or will be) issued with the
intention that the Series 1995-5 Certificates will qualify under applicable
tax law as indebtedness of the Seller secured by the Receivables. The Seller,
each Beneficiary and each Certificateholder and Certificate Owner, by the
acceptance of its Certificate or Book-Entry Certificate, as applicable, agrees
to treat the Series 1995-5 Certificates as indebtedness of the Seller secured
by the Receivables for Federal income taxes, state and local income, single
business and franchise taxes and any other taxes imposed on or measured by
income.
On each Distribution Date, the Trustee shall distribute to each
Series 1995-5 Certificateholder of record at the close of business on the day
preceding such Distribution Date (each a "Record Date") such
Certificateholder's pro rata share (based on the aggregate
6
fractional undivided interest represented by the Series 1995-5 Certificates
held by such Certificateholder, except as otherwise provided in the Pooling
and Servicing Agreement) of such amounts on deposit in the Collection Account
and any Series Account as are payable in respect of the Series 1995-5
Certificates pursuant to the Pooling and Servicing Agreement. Distributions
with respect to this Certificate will be made by the Trustee by check mailed
to the address of the Certificateholder of record appearing in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation thereon (except for the final distribution in respect
of this Certificate) except that with respect to any series 1995-5 Certificate
holder holding at least $1,000,000 original principal amount of the series
1995-5 Certificates, such distributions shall be made by wire transfer, in
immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such Series 1995-5
certificate holders shall have provided to the Servicer appropriate
instructions prior to the Distribution Date, and except that distributions to
Barton as a Series 1995-5 Certificate holder shall be made by wire transfer,
in immediately available funds, to such account as Barton shall have
designated to the Servicer prior to the related Distribution Date. Final
payment of this Certificate will be made only upon presentation and surrender
of this Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Certificate holder in accordance
with the Pooling and Servicing Agreement.
On the Distribution Date occurring after the Invested Amount is
reduced to $25,000,000 or less, the Seller has the option, subject to the
condition set forth in Section 7.01(c) of the Series Supplement, to purchase
the entire Series 1995-5 Certificateholder's Interest in the Trust. The
purchase price will be equal to the Reassignment Amount (as defined in the
Series Supplement).
This Certificate does not represent an obligation of, or an
interest in, Chrysler Corporation, the Seller, the Servicer, or any affiliate
of any of them and is not insured or guaranteed by any governmental agency or
instrumentality. This Certificate is limited in right of payment to certain
Collections with respect to the Receivables (and certain other amounts), all
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
The Pooling and Servicing Agreement may be amended from time to
time (including in connection with the issuance
7
of a Supplemental Certificate) by the Servicer, the Seller and the Trustee,
without the consent of any of the Series 1995-5 Certificateholders, so long as
any such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of the Certificateholders of any
outstanding Series. The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's rights, duties or immunities
under the Pooling and Servicing Agreement or otherwise. Notwithstanding
anything contained therein to the contrary, the Trustee, with the consent of
any Enhancement Providers, may at any time and from time to time amend, modify
or supplement the form of Distribution Date Statement.
The Pooling and Servicing Agreement may also be amended from
time to time (including in connection with the issuance of a Supplemental
Certificate) by the Servicer, the Seller and the Trustee with the consent of
the Holders of Investor Certificates evidencing not less than 66-2/3% of the
aggregate unpaid principal amount of the certificates of the Investor
Certificates of all adversely affected Series, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Pooling and Servicing Agreement or of modifying in any manner the
rights of the Investor Certificateholders; provided, however, that no such
amendment to the Pooling and Servicing Agreement shall (i) reduce in any
manner the amount of or delay the timing of distributions to be made to
Investor Certificateholders or deposits of amounts to be so distributed
without the consent of such each affected Investor Certificateholder; (ii)
change the definition or the manner of calculating any certificateholders'
interest without the consent of each affected Investor Certificateholder;
(iii) reduce the amount available under any Enhancement without the consent of
each affected Investor Certificateholder; (iv) adversely affect the rating of
any Series or class by each Rating Agency without the consent of the holders
of certificates of such Series or class evidencing not less than 66-2/3% of
the aggregate unpaid principal amount of the Investor Certificates of such
Series or Class or (v) reduce the aforesaid percentage required to consent to
any such amendment without the consent of all Investor Certificateholders. The
Pooling and Servicing Agreement may not be amended in any manner which
adversely affects the interests of any Enhancement Provider without its prior
consent.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the
8
transfer of this Certificate is registrable in the Certificate Register of the
Trustee upon surrender of this Certificate for registration of transfer at the
office or agency maintained by the Trustee in New York, New York, accompanied
by a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder's attorney duly authorized, and
thereupon one or more new Series 1995-5 Certificates of authorized
denominations evidencing the same aggregate fractional undivided interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement.
As provided in the Poolinq and Servicing Agreement and subject
to certain limitations therein set forth, Series 1995-5 Certificates are
exchangeable for new Series 1995-5 Certificates evidencing like aggregate
fractional undivided interests as requested by the Certificateholder
surrendering such Certificates. No service charge may be imposed for any such
exchange but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
The Servicer, the Trustee, the Transfer Agent and Registrar and
any agent of any of them, may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Servicer
nor the Trustee, the Transfer Agent and Registrar, nor any agent of any of
them, shall be affected by notice to the contrary except in certain
circumstances described in the Pooling and Servicing Agreement.
9
ASSIGNMENT
Social Security or other identifying number of assignee
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto __________________________________________________
_____________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________, attorney, to transfer said certificate
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: _________________________________ ________________________ *
Signature Guaranteed:
__________________________
_________________
(*) NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the reverse of the within Certificate in
every particular, without alteration, enlargement or any change whatsoever.
Exhibit B
Series 1995-5
Series 95-5 Initial Amounts
- ---------------------------
Initial Invested Amount
Principal Accumulation Amount Conditional
Aggregate Subordinated Amount
Subordinated Amount
Swap Sub Amount
Required Reserve Pct
Monthly Servicing Fee Rate
Required Participation Pct
Subordination Factor
Expected Accumulation Period
Expected Final Payment Date
Initial Settlement Date
Spread to Index
Series 95-5 Monthly Reporting Excess
- ----------------------------- Series 95-5 Funding Acct
Principal Receivables Total Invested Amt Subordination Swap Sub Aggreg Sub Excess (Cash)
--------------------- ------------ ------------ ------------- -------- ---------- ------ -----------
Series Allocation Percentage
Beginning Balance
Floating Allocation Pct
Principal Collections
New Principal Receivables
Principal Default Amounts
Receivables Added for
Additional Accounts
Controlled Accumulation
Shortfall
Monthly Principal Accumulated
Principal Allocation Pct
Ending Balance
Floating Allocation Pct
Pool Factor
Non-Principal Receivables
-------------------------
Total Interest Collections
Interest Collections
Interest Collections on
"D" and "L"
Recoveries on Receivables
Written Off
Investment Income
Subordinated Amount & Reserve Fund Current Previous
---------------------------------- ------- --------
Beginning Subordination Amount
Required Subordination Draw Amount
Excess Servicing
Required Subordinated Amount
Available Subordination Amount
as of:
Initial Subordinated Amount
Incremental Subordination Amount Default Rec.
Overconcentration Amount
Installment Balance Amount
Other Ineligible Amounts
Beginning of Period
Seller's Participation Deficiency
Required Reduction of Invested Amount
End of Period
Seller's Participation Deficiency
Required Reduction of Invested Amount
Beginning Reserve Fund Balance
Reserve Fund Required Amount
Reserve Fund Draw
Reserve Fund Deposit Amount
Ending Reserve Fund Balance
Beginning Yield Supplement Account Balance
Yield Supplement Account Draw
Yield Supplement Account Deposit
Ending Yield Supplement Account Balance
Required Interest Distributions Current Previous
------------------------------- ------- --------
Available Non-Principal Collections
Investor Non-Principal Collections
Sub Non-Principal Collections
Investment Income
Total Non-Principal Available
Monthly Interest
Fed Funds Rate
Spread to Fed Funds Rate
Certificate Rate
Servicing Fee Rate
Asset Receivables Rate
Certificate Rate
Accrual From
Accrual To
Days in Period
Interest Shortfall
Additional Interest
Carry-over Amount
Carry-over Shortfall
Additional Carry-over Shortfall
Monthly Servicing Fee
Investor Monthly Servicing Fee
Reserve Fund Deposit Amount
Investor Default Amount
Excess Servicing and Sub Collections
Excess Sub Non-Principal Collections
Excess Servicing
Yield Supplement Draw
Deficiency Amount
Required Principal Distributions
--------------------------------
Investor Principal
Seller Monthly Principal
Funding Account Balances Beginning Reinv. Deposits Withdrawals Ending
------------------------ --------- ------ -------- ----------- ------
Excess Funding Account
Principal Funding Account
Total
Ending Series Allocation
Percentage (SAP)
Ending Pool Balance
SAP * Pool Balance
Reserve Fund Balance
Yield Supplement Account Balance
Total Funding Account Balances
Total Assets
Summary of Investor Distributions Per $1000 Start Tracking Accumulation Period Length?:
================================= Actual Certificate Accumulation Period Length:
Investor Monthly Principal
Investor Monthly Interest
Total Investor Distributions
EXHIBIT C
FORM OF INVESTMENT LETTER
[Date]
==============================================================================
U. S. Auto Receivables Company Manufacturers and Traders Trust
27777 Franklin Road Company,
Southfield, Michigan 48034 as trustee for the CARCO Auto
Loan
Master Trust
1 M&T Plaza
Buffalo, New York 14203
- ------------------------------------------------------------------------------
Chrysler Credit Corporation
27777 Franklin Road
Southfield, Michigan 48034
==============================================================================
Re: CARCO Auto Loan Master Trust Floating Rate
Auto Loan Asset Backed Certificates,
Series 1995-5
Dear Sirs:
We refer to Section 6.04(c)(i) of the pooling and servicing
agreement dated as of May 31, 1991, as assigned by Chrysler Auto Receivables
Company ("CARCO") to U.S. Auto Receivables Company (the "Seller") on August 8,
1991 (as assigned and as supplemented and amended from time to time, the
"P&S"), among CARCO, the Seller, Chrysler Credit Corporation, as servicer (the
"Servicer"), and Manufacturers and Traders Trust Company, as Trustee (the
"Trustee"), as supplemented by the Series 1995-5 Supplement to the P&S dated
as of November 30, 1995 (the "Supplement", and together with the P&S, the
"Pooling and Servicing Agreement"), among the Seller, the Servicer and the
Trustee.
We propose to acquire a Series 1995-5 Certificate in the
principal amount of $ ______ (the "Certificate"). Capitalized terms used and
not otherwise defined herein shall have the meanings given them in the Pooling
and Servicing Agreement.
1. We are an "accredited investor" as defined in Regulation D
under the Securities Act. We are acquiring the Note for our own institutional
account or for the account of an accredited investor that is an institutional
investor.
2
2. We have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of an
investment in the Note, and we are (or any account for which we are purchasing
is) able to bear the economic risk of such investment.
3. We confirm that we have received all the information we
deem necessary as the basis for our investment in the Certificate.
4. We understand that the Certificates will be offered in a
transaction not involving any public offering within the meaning of the
Securities Act, and that, if in the future we decide to resell, pledge or
otherwise transfer any Certificate, such Certificate may be resold, pledged or
transferred only to a person whom the seller reasonably believes is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A.
5. We understand that the Certificate will bear a legend
substantially to the following effect:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR NY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
3
6. We understand that there is no market, nor is
there any assurance that a market will develop, for the
Certificates.
7. We represent that our purchase of the Certificate will not
constitute a non-exempt "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
8. By our acceptance of the Certificate, we
agree to be bound by all of the terms of the Note and the
Indenture.
9. Our United States taxpayer identification
number is ____________.
10. We agree that we will obtain from any purchaser of our Note
the same representations, warranties and agreements contained in the foregoing
paragraphs and in this paragraph.
Very truly yours,
[NAME OF TRANSFEREE]
By:_________________________
Name:
Title:
EXHIBIT D
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT OR (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
SCHEDULE 1
Each of (i) the Principal Funding Account, (ii) the Excess
Funding Account, (iii) the Reserve Fund and (iv) the Yield Supplement Account
for the CARCO Auto Loan Master Trust, Series 1995-5 has been duly and validly
created with Manufacturers and Traders Trust Company in the name of
Manufacturers and Traders Trust Company as Trustee on behalf of the Series
1995-5 Certificateholders.
Principal Funding Account. . .(Account No. 185595121)
Excess Funding Account . . . .(Account No. 185595667)
Reserve Fund Account . . . . .(Account No. 185595212)
Yield Supplement Account . . .(Account No. 185595303)