Exhibit 4.2
TRUST AGREEMENT, dated as of , ,
between NationsBank, N.A., NationsBank, N.A. (South) and
NationsBank of Texas, N.A., each a national banking associa-
tion and each a Depositor, and collectively, the Depositors,
and ___________, ________, a Delaware banking corporation,
not in its individual capacity but solely as Owner Trustee.
The Depositors and the Owner Trustee hereby agree as fol-
lows:
1. The trust created hereby shall be known as
"NationsBank Auto Owner Trust 199_-_", in which name the
Owner Trustee may conduct the business of the Trust, make
and execute contracts, and sue and be sued.
2. The Depositors hereby assign, transfer,
convey and set over to the Owner Trustee the sum of $3. The
Owner Trustee hereby acknowledges receipt of such amount in
trust from the Depositors, which amount shall constitute the
initial trust estate. The Owner Trustee hereby declares
that it will hold the trust estate in trust for the Deposi-
tors. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Delaware
Code SECTION 3801 et seq. and that this document constitute the
governing instrument of the Trust. The Owner Trustee is
hereby authorized and directed to execute and file a certif-
icate of trust with the Delaware Secretary of State in the
form attached hereto.
3. The Depositors and the Owner Trustee will
enter into an amended and restated Trust Agreement, satis-
factory to each such party, to provide for the contemplated
operation of the Trust created hereby. Prior to the execu-
tion and delivery of such amended and restated Trust Agree-
ment, the Owner Trustee shall not have any duty or obliga-
tion hereunder or with respect to the trust estate, except
as otherwise required by applicable law or as may be neces-
sary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law
or otherwise.
4. This Trust Agreement may be executed in one
or more counterparts.
5. The Owner Trustee may resign upon thirty
days' prior notice to the Depositors.
6. This Trust Agreement shall be governed by,
and construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws of principles).
7. To the fullest extent permitted by law, the
Depositors agree to indemnify and defend the Owner Trustee,
the registrar and any paying agent and their directors,
officers, employees and agents against, and hold each of
them harmless from, any liability, costs and expenses (in-
cluding reasonable attorneys' fees) that may arise out of or
in connection with the Owner Trustee acting as Owner Trustee
under this Trust Agreement except for any liability arising
out of negligence, bad faith or willful misconduct on the
art of any such person or persons.
8. In the event that the Owner Trustee is uncer-
tain as to the application or interpretation of any provi-
sion of this Trust Agreement or must choose between alterna-
tive courses of action, the Owner Trustee may seek the
instructions of the Depositors by written notice addressed
to [NationsBank, N.A. on behalf of the Depositors of the
NationsBank Auto Owner Trust 199_-_; NC1-007-20-01 100 North
Tryon Street, Charlotte, North Carolina 28255, Attention:
Mr. Robert W. Long, Jr., Esq.] requesting instructions. The
Owner Trustee shall take and be protected in taking such
action as has been directed by the Depositors, provided that
if the Owner Trustee does not receive instructions within 10
days or such shorter time (but not less than 5 days) as is
set forth in the Owner Trustee's notice, the Owner Trustee
may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agree-
ment as it shall deem advisable.
The Owner Trustee shall not be liable for any
action or any failure to act by it in reliance upon the
advice of or information from legal counsel, accountants or
any other person believed by it in good faith to be compe-
tent to give such advice or information. The Owner Trustee
may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by it
to be genuine and to have been signed or presented by the
proper party or parties.
IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year
first above written.
NATIONSBANK, N.A.,
as Depositor
By:
Name:
NATIONSBANK, N.A. (South),
as Depositor
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Depositor
By:
Name:
Title:
______________, DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
CERTIFICATE OF TRUST OF
NATIONSBANK AUTO OWNER TRUST 1996-A
This Certificate of Trust of NATIONSBANK AUTO
OWNER TRUST 199_-_ (the "Trust"), dated as of ,
, is being duly executed and filed by ________, Delaware, a
Delaware banking corporation, as trustee, to form a business
trust under the Delaware Business Trust Act (12 Delaware
Code, SECTION 3801 et seq.).
1. Name. The name of the business trust formed
hereby is NATIONSBANK AUTO OWNER TRUST 199_-_.
2. Delaware Trustee. The name and business
address of the trustee of the Trust in the State of Delaware
is ____________, Delaware, ____________, _____________,
Delaware _____.
IN WITNESS WHEREOF, the undersigned, being the
sole trustee of the Trust, has executed this Certificate of
Trust as of the date first above written.
_____________, DELAWARE,
not in its individual capacity
but solely as owner trustee
under a Trust Agreement dated
as of ,
By:
Name:
Title:
AMENDED AND RESTATED
TRUST AGREEMENT
between
NATIONSBANK, N.A.,
NATIONSBANK, N.A. (SOUTH)
and
NATIONSBANK OF TEXAS, N.A.,
each a Depositor and collectively,
the Depositors,
and
__________________,
as Owner Trustee
Dated as of _________ __, _____
AMENDED AND RESTATED TRUST AGREEMENT, dated as
of _________ __, ____ (as from time to time amended,
supplemented or otherwise modified and in effect, this
"Agreement"), between NATIONSBANK, N.A., NATIONSBANK,
N.A. (SOUTH) and NATIONSBANK OF TEXAS, N.A., each a
national banking association and each a Depositor and
collectively, the Depositors, having their respective
individual principal executive offices located in the
states of North Carolina, Georgia and Texas; and
_______________, a Delaware banking corporation, not in
its individual capacity but solely as Owner Trustee under
this Agreement, having its principal corporate trust
office at _________________.
WHEREAS, the parties hereto intend to amend and
restate that certain Trust Agreement, dated as of
, between the Depositors and the Owner Trustee, on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premis-
es and mutual covenants herein contained, the receipt and
sufficiency of which are hereby acknowledged, the Deposi-
tors and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but
not otherwise defined herein are defined in Appendix A
hereto, which also contains rules as to usage that shall
be applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust created hereby
shall be known as "NationsBank Auto Owner Trust ____-__",
in which name the Owner Trustee may conduct the business
of the Trust, make and execute contracts and other in-
struments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust
shall be in care of the Owner Trustee at the Corporate
Trust Office or at such other address in the State of
Delaware as the Owner Trustee may designate by written
notice to the Certificateholders and the Depositors.
SECTION 2.3. Purposes and Powers. (a) The
purpose of the Trust is, and the Trust shall have the
power and authority, to engage in the following activi-
ties:
(i) to issue the Notes pursuant to the Inden-
ture, and the Certificates pursuant to this Agree-
ment, and to sell the Notes and the Certificates
upon the written order of the Depositors;
(ii) with the proceeds of the sale of the
Notes and the Certificates, to fund [the Reserve
Account and the Yield Supplement Account], to pay
the organizational, start-up and transactional
expenses of the Trust, and to pay the balance to the
Depositors pursuant to the Sale and Servicing Agree-
ment;
(iii) to pay interest on and principal of the
Notes and distributions on the Certificates;
(iv) to Grant the Owner Trust Estate (other
than the Certificate Distribution Account and the
proceeds thereof) to the Indenture Trustee pursuant
to the Indenture;
(v) to enter into and perform its obligations
under the Basic Documents to which it is to be a
party;
(vi) to engage in those activities, including
entering into agreements, that are necessary, suit-
able or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic
Documents, to engage in such other activities as may
be required in connection with conservation of the
Owner Trust Estate and the making of distributions
to the Noteholders and the Certificateholders.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity
other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee.
The Depositors [and NB-SPC] hereby appoint the Owner
Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set
forth herein.
SECTION 2.5. Initial Capital Contribution of
Owner Trust Estate. As of , , each of the
Depositors [and NB-SPC] sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $3.
The Owner Trustee hereby acknowledges receipt in trust
from the Depositors, as of such date, of the foregoing
contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositors shall pay the
organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by
the Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner
Trustee hereby declares that it will hold the Owner Trust
Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificate-
holders, subject to the obligations of the Trust under
the Basic Documents. It is the intention of the parties
hereto that (i) the Trust constitute a business trust
under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business
trust and (ii) for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets
of the partnership being the Receivables and other assets
held by the Trust, the partners of the partnership being
the Certificateholders [(including the Depositors)] and
[NB-SPC], as General Partner and the Notes constituting
indebtedness of the partnership. The parties agree that,
unless otherwise required by the appropriate tax authori-
ties, [NB-SPC] on behalf of the Trust, will file or cause
to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of
the Trust as a partnership for such tax purposes. Effec-
tive as of the date hereof, the Owner Trustee shall have
the rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the
purposes of the Trust. The Owner Trustee has filed the
Certificate of Trust with the Secretary of State of
Delaware.
SECTION 2.7. Liability of [NB-SPC]. (a)
Notwithstanding Section 3803 of the Business Trust Stat-
ute, [NB-SPC] in its capacity as a Certificateholder
shall be liable directly to, and will indemnify each
injured party for, all losses, claims, damages, liabili-
ties and expenses of the Trust (including Expenses, to
the extent that the assets of the Trust that would remain
if all of the Notes were paid in full would be insuffi-
cient to pay any such losses, claims, damages, liabili-
ties or expenses, or to the extent that such losses,
claims, damages, liabilities and expenses in fact are not
paid out of the Owner Trust Estate) for which such [NB-
SPC] would be liable if the Trust or the arrangement
between [NB-SPC] and the Trust were a partnership under
the Limited Partnership Act in which such Depositor were
a general partner; provided, however, that [NB-SPC] shall
not be liable to or indemnify Noteholders or Note Owners
for any losses incurred by Noteholders or Note Owners in
their capacity as holders of or beneficial owners of
interests in limited recourse debt secured by the Owner
Trust Estate or be liable to or indemnify Certificate-
holders or Certificate Owners for any losses incurred by
the Certificateholders or Certificate Owners if such
losses would nevertheless have been incurred if the
Certificates were limited recourse debt secured by the
Owner Trust Estate. In addition, any third-party credi-
tors of the Trust, or of the arrangement between [NB-SPC]
and the Trust (other than in connection with the obliga-
tions described in the preceding sentence for which [NB-
SPC] shall not be liable), shall be deemed third-party
beneficiaries of this paragraph. The obligations of [NB-
SPC] under this paragraph shall be evidenced by the
Certificates described in Section 3.10, which, for pur-
poses of the Business Trust Statute, shall be deemed to
be a separate class of Certificates from all other class-
es of Certificates issued by the Trust.
(b) No Certificateholder other than [NB-SPC]
to the extent set forth in paragraph (a) of this Section
2.7, shall have any personal liability for any liability
or obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal
title to the entirety of the Owner Trust Estate shall be
vested at all times in the Trust as a separate legal
entity, except where applicable law in any jurisdiction
requires title to any part of the Owner Trust Estate to
be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-
trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust shall
be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of
Delaware or the State of New York. The Trust shall not
have any employees in any state other than the State of
Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having em-
ployees within or without the State of Delaware. Pay-
ments will be received by the Trust only in Delaware or
New York, and payments will be made by the Trust only
from Delaware or New York. The only office of the Trust
will be at the Corporate Trust Office in the State of
Delaware.
SECTION 2.10. Representations and Warranties
of Each Depositors. Each Depositor hereby represents and
warrants to the Owner Trustee that:
(a) The Depositor is a national banking asso-
ciation and validly existing in good standing under the
laws of the United States, with power and authority to
own its properties and to conduct its business as such
properties are currently owned and such business is
presently conducted.
(b) The Depositor has the power and authority
to execute and deliver this Agreement and to carry out
its terms, and the Depositor has full power and authority
to sell and assign the property to be sold and assigned
to, and deposited with, the Trust, and the Depositor has
duly authorized such sale and assignment and deposit to
the Trust; and the execution, delivery and performance of
this Agreement have been duly authorized by the Deposi-
tor.
(c) This Agreement constitutes a legal, valid,
and binding obligation of the Depositor, enforceable
against the Depositor in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receiver-
ship, liquidation and other similar laws now or hereafter
in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national bank-
ing associations and to general equitable principles
(whether considered in a suit at law or in equity).
(d) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach
of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a
default under any indenture, agreement or other instru-
ment to which the Depositor is a party or by which it is
bound; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other
than pursuant to the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any
order, rule or regulation applicable to the Depositor of
any court or of any federal or state regulatory body,
administrative agency or other governmental instrumental-
ity having jurisdiction over the Depositor or its proper-
ties.
(e) There are no proceedings or investigations
pending or, to the Depositor's best knowledge, threatened
before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the
other Basic Documents, the Notes or the Certificates,
(ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transac-
tions contemplated by this Agreement, the Indenture or
any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and ad-
versely affect the performance by the Depositors of its
obligations under, or the validity or enforceability of,
this Agreement or (iv) which might adversely affect the
federal income tax attributes, or Applicable Tax State
franchise [or income tax attributes], of the Notes and
the Certificates.
(f) The representations and warranties of the
Depositors in Section 6.1 of the Sale and Servicing
Agreement are true and correct.
SECTION 2.11. Federal Income Tax Matters. The
Certificateholders and the Certificate Owners acknowledge
that it is their intent and that they understand it is
the intent of the Depositors and the Servicer that, for
purposes of federal income, state and local income and
franchise tax and any other income taxes, the Trust will
be treated as a partnership and the Certificateholders
(including [NB-SPC]) will be treated as partners in that
partnership. The Depositors, the General Partner and the
other Certificateholders by acceptance of a Certificate
(and the Certificate Owners by acceptance of a beneficial
interest in a Certificate) agree to such treatment and
agree to take no action inconsistent with such treatment.
For purposes of federal income, state and local income
and franchise tax and any other income taxes each month:
(a) amounts paid to any Certificateholder
pursuant to Section 5.2(a)(i) shall be treated as a
guaranteed payment within the meaning of Section
707(c) of the Code;
(b) to the extent the characterization provid-
ed for in paragraph (a) of this Section 2.11 is not
respected, gross ordinary income of the Trust for
such month as determined for federal income tax
purposes shall be allocated among the Certificate-
holders as of the first Record Date following the
end of such month, in proportion to their ownership
of the aggregate Certificate Balance on such date,
in an amount up to the sum of (i) the Accrued Cer-
tificate Interest for such month, (ii) the portion
of the market discount on the Receivables accrued
during such month that is allocable to the excess,
if any, of the aggregate Initial Certificate Balance
of the Certificates over their initial aggregate
issue price and (iii) any amount expected to be
distributed to the Certificateholders pursuant to
Section 4.6(c) of the Sale and Servicing Agreement
(to the extent not previously allocated pursuant to
this paragraph (b)) to the extent necessary to
reverse any net loss previously allocated to Certif-
icateholders (to the extent not previously reversed
pursuant to this clause (iii));
(c) thereafter all remaining net income of
the Trust for such month as determined for federal
income tax purposes (and each item of income, gain,
credit, loss or deduction entering into the computa-
tion thereof) shall be allocated to the holder of
the Contingent Payment Right to the extent thereof;
and
(d) any other provision of this Agreement to
the contrary notwithstanding, [NB-SPC] shall be
allocated no less than 2% of each item of income,
gain, credit, loss and deduction (which allocation
shall be made only to the extent the other alloca-
tions of this Section 2.11 are insufficient to
provide for such 2% allocation for such month).
If the gross ordinary income of the Trust for any month
is insufficient for the allocations described in para-
graph (b) above, subsequent gross ordinary income shall
first be allocated to make up such shortfall before any
allocation pursuant to paragraph (c) above. Net losses
of the Trust, if any, for any month as determined for
federal income tax purposes (and each item of income,
gain, credit, loss or deduction entering into the compu-
tation thereof) shall be allocated to the holder of the
Contingent Payment Right and any remaining net losses
shall be allocated among the Certificateholders as of the
first Record Date following the end of such month in
proportion to their ownership of the aggregate Certifi-
cate Balance on such Record Date. The General Partner is
authorized to modify the allocations in this paragraph to
the minimum extent necessary to comply with the provi-
sions of Treasury Regulations promulgated pursuant to
Section 704 of the Code.
END OF ARTICLE II
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership.
Upon the formation of the Trust by the contribution by
the Depositors pursuant to Section 2.5 and until the
issuance of the Certificates, the Depositors shall be the
sole beneficial owners of the Trust.
SECTION 3.2. Capital Accounts. (a) The Owner
Trustee shall establish and maintain a separate bookkeep-
ing account (a "Capital Account") for each Certificate-
holder and the holder of the Contingent Payment Right.
The Capital Account of each Certificateholder shall also
be increased by (i) the dollar amount of any additional
cash contributions made by such Certificateholder, (ii)
the fair market value of any property (other than cash)
contributed to the Trust by such Certificateholder (net
of any liabilities to which the property is subject), and
(iii) allocations to such Certificateholder of income and
gain (including income exempt from tax). The Capital
Account of each Certificateholder shall be decreased by
(i) the dollar amount of any cash distributions made to
such Certificateholder, (ii) the fair market value of any
property (other than cash) distributed to such Certifi-
cateholder (net of any liabilities to which the property
is subject), (iii) allocations to such Certificateholder
of loss or deductions (or items thereof), and (iv) any
allocations of expenditures of the Trust described in
Section 705(a)(2)(B) of the Code.
(b) Notwithstanding any other provision of
this Agreement to the contrary, the foregoing provisions
of this Section 3.2 regarding the maintenance of Capital
Accounts shall be construed so as to comply with the
provisions of Treasury Regulations promulgated pursuant
to Section 704 of the Code. The General Partner is
hereby authorized to modify these provisions to the
minimum extent necessary to comply with such regulations.
SECTION 3.3. The Certificates. The Certifi-
cates shall be issued in denominations of at least $1,000
and in integral multiples of $1,000 in excess thereof;
provided, however, that Certificates may be issued to the
General Partner pursuant to Section 3.10 in such denomi-
nations as to represent at least 2% of the Initial Cer-
tificate Balance. The Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of
an authorized officer of the Owner Trustee. Certificates
bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates
or did not hold such offices at the date of authentica-
tion and delivery of such Certificates.
SECTION 3.4. Authentication of Certificates.
Concurrently with the initial sale of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement,
the Owner Trustee shall cause the Certificates, in an
aggregate principal balance equal to the Initial Certifi-
cate Balance, to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order
executed by each of the Depositors and signed by the
chairman of the board, the president, any executive vice
president, any vice president, the secretary, any assis-
tant secretary, the treasurer or any assistant treasurer
of each Depositor], without further action by the Deposi-
tors, in authorized denominations. No Certificate shall
entitle its Certificateholder to any benefit under this
Agreement, or shall be valid for any purpose, unless
there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in
Exhibit A attached hereto executed by the Owner Trustee
or ____________, as the Owner Trustee's authenticating
agent, by manual signature; such authentication shall
constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereun-
der. All Certificates shall be dated the date of their
authentication.
SECTION 3.5. Registration of Certificates;
Transfer and Exchange of Certificates. (a) The Certifi-
cate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trust shall provide
for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided.
_____________ shall be the initial Certificate Registrar.
No transfer of a Certificate shall be recognized except
upon registration of such transfer in the Certificate
Register.
(b) Upon surrender for registration of trans-
fer of any Certificate at the office or agency maintained
pursuant to Section 3.8, the Owner Trustee shall execute,
authenticate and deliver (or shall cause ___________, as
its authenticating agent, to authenticate and deliver),
in the name of the designated transferee or transferees,
one or more new Certificates in authorized denominations
of a like aggregate amount dated the date of authentica-
tion by the Owner Trustee or any authenticating agent.
At the option of a Certificateholder, Certificates (other
than the Certificates issued to the General Partner
pursuant to Section 3.10) may be exchanged for other
Certificates of authorized denominations of a like aggre-
gate amount upon surrender of the Certificates to be
exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney duly
authorized in writing, with such signature guaranteed by
a member firm of the New York Stock Exchange or a commer-
cial bank or trust company. Each Certificate surrendered
for registration of transfer or exchange shall be cancel-
led and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice.
No service charge shall be made for any regis-
tration of transfer or exchange of Certificates, but the
Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or govern-
mental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The preceding provisions of this Section 3.4
notwithstanding, the Owner Trustee shall not make and the
Certificate Registrar need not register any transfer or
exchange of Certificates for a period of fifteen (15)
days preceding any Distribution Date for any payment with
respect to the Certificates.
The Certificates and any beneficial interest in
such Certificates may not be acquired by (a) employee
benefit plans (as defined in section 3(3) of ERISA) that
are subject to the provisions of Title I of ERISA, (b)
plans described in section 4975(e)(1) of the Code, in-
cluding individual retirement accounts described in
Section 408(a) of the Code or Keogh plans, or (c) enti-
ties whose underlying assets include plan assets by
reason of a plan's investment in such entities (each, a
"Benefit Plan"). By accepting and holding a Certificate
or an interest therein, the Certificateholder thereof or
the Certificate Owner thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan
and is not purchasing Certificates on behalf of a Benefit
Plan.
The Certificates and any beneficial interest in
such Certificates may not be purchased by Persons other
than U.S. Persons and non-U.S. Persons who shall have
satisfied the Depositors and the Owner Trustee that such
non-U.S. Person will be taxed with respect to its benefi-
cial ownership of Certificates as if it were a U.S.
Person. By accepting and holding a Certificate or an
interest therein, the Certificateholder thereof or the
Certificate Owner thereof shall be deemed to have repre-
sented and warranted that it is not a non-U.S. Person and
is not purchasing Certificates on behalf of a non-U.S.
Person, unless such Certificateholder or Certificate
Owner is a non-U.S. Person who shall have satisfied the
Depositors and the Owner Trustee with respect to its
taxation as a U.S. Person.
SECTION 3.6. Mutilated, Destroyed, Lost or
Stolen Certificates. If (a) any mutilated Certificate
shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any
Certificate and (b) there shall be delivered to the
Certificate Registrar and the Owner Trustee such security
or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice that such
Certificate shall have been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall
execute and the Owner Trustee, or ___________, as the
Owner Trustee's authenticating agent, shall authenticate
and deliver, in exchange for, or in lieu of, any such
mutilated, destroyed, lost or stolen Certificate a new
Certificate of like tenor and denomination. In connec-
tion with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee or the Certificate Regis-
trar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate
issued pursuant to this Section 3.5 shall constitute
conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.7. Persons Deemed Owners of Certifi-
cates. Prior to due presentation of a Certificate for
registration of transfer, the Owner Trustee, the Certifi-
cate Registrar and any Certificate Paying Agent may treat
the Person in whose name any Certificate shall be regis-
tered in the Certificate Register as the owner of such
Certificate for the purpose of receiving distributions
pursuant to Section 5.2 and for all other purposes what-
soever, and none of the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent shall be bound
by any notice to the contrary.
SECTION 3.8. Access to List of
Certificateholders' Names and Addresses. The Owner
Trustee shall furnish or cause to be furnished to the
Servicer and the Depositors, or to the Indenture Trustee,
within fifteen (15) days after receipt by the Owner
Trustee of a written request therefor from the Servicer
or a Depositor, or the Indenture Trustee, as the case may
be, a list, in such form as the requesting party may
reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If
three or more Certificateholders or one or more Certifi-
cateholders of Certificates evidencing not less than 25%
of the Certificate Balance apply in writing to the Owner
Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the
Certificates and such application is accompanied by a
copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five (5)
Business Days after the receipt of such application,
afford such applicants access during normal business
hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certifi-
cate, shall be deemed to have agreed not to hold any of
the Depositors, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which
such information was derived.
SECTION 3.9. Maintenance of Office or Agency.
The Owner Trustee shall maintain in The Borough of Man-
hattan, The City of New York, an office or offices or
agency or agencies where Certificates may be surrendered
for registration of transfer or exchange and where notic-
es and demands to or upon the Owner Trustee in respect of
the Certificates and the Basic Documents may be served.
The Owner Trustee initially designates ____________,
____________, New York, New York _______ as its principal
corporate trust office for such purposes. The Owner
Trustee shall give prompt written notice to the Deposi-
tors and to the Certificateholders of any change in the
location of the Certificate Registrar or any such office
or agency.
SECTION 3.10. Appointment of Certificate
Paying Agent. The Certificate Paying Agent shall make
distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.2 and shall
report the amounts of such distributions to the Owner
Trustee. Any Certificate Paying Agent shall have the
revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the dis-
tributions referred to above. The Owner Trustee may
revoke such power and remove the Certificate Paying Agent
if the Owner Trustee determines in its sole discretion
that the Certificate Paying Agent shall have failed to
perform its obligations under this Agreement in any
material respect. The Certificate Paying Agent shall
initially be , and any co-paying agent chosen by
the Owner Trustee. shall be permitted to
resign as Certificate Paying Agent upon thirty (30) days'
written notice to the Owner Trustee. In the event that
_____________ shall no longer be the Certificate Paying
Agent, the Owner Trustee shall appoint a successor to act
as Certificate Paying Agent (which shall be a bank or
trust company). The Owner Trustee shall cause such
successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee
to execute and deliver to the Owner Trustee an instrument
in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the
Owner Trustee that as Certificate Paying Agent, such
successor Certificate Paying Agent or additional Certifi-
cate Paying Agent will hold all sums, if any, held by it
for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until
such sums shall be paid to such Certificateholders. The
Certificate Paying Agent shall return all unclaimed funds
to the Owner Trustee and upon removal of a Certificate
Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Owner Trustee.
The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall
apply to the Owner Trustee also in its role as Certifi-
cate Paying Agent, for so long as the Owner Trustee shall
act as Certificate Paying Agent and, to the extent appli-
cable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Certificate Paying
Agent shall include any co-paying agent unless the con-
text requires otherwise.
SECTION 3.11. Ownership by General Partner of
Certificates. The General Partner shall, on the Closing
Date, acquire, and shall thereafter retain, beneficial
and record ownership of, Certificates representing at
least 2% of the Certificate Balance. The holder of the
Contingent Payment Right shall be entitled to receive
amounts released from the Reserve Account and any amounts
not needed on any Distribution Date to make payments on
the Notes or the Certificates or to make deposits to the
Reserve Account pursuant to Section 4.6 of the Sale and
Servicing Agreement. [Neither] the General Partner nor
any such holder may transfer any such rights unless an
Opinion of Counsel has been received by the General
Partner [and the Depositors] that such transfer shall not
cause the Trust to be classified as an association (or
publicly traded partnership) taxable as a corporation.
Any attempted transfer of any Certificate that would
reduce the interest of the General Partner (including the
right to receive distributions in respect of interest on
the Certificates held by the General Partner) below 2% of
(x) the Certificate Balance and (y) the aggregate of the
distributions in respect of interest on the Certificate
Balance shall be null and void. The Owner Trustee shall
cause any Certificate issued to the General Partner to
contain a legend to the following effect: "THIS CERTIFI-
CATE IS NOT TRANSFERABLE AND ANY ATTEMPTED TRANSFER OF
THIS CERTIFICATE SHALL BE NULL AND VOID".
SECTION 3.12. Book-Entry Certificates. The
Certificates, upon original issuance, will be issued in
the form of a typewritten Certificate or Certificates
representing Book-Entry Certificates, to be delivered to
The Depository Trust Company, the initial Clearing Agen-
cy, by, or on behalf of, the Trust; provided, however,
that one Definitive Certificate (as defined below) [shall
be] issued to the General Partner [and to each Depositor]
pursuant to Section 3.10. Such Certificate or Certifi-
cates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificate Owner will
receive a Definitive Certificate representing such Cer-
tificate Owner's interest in such Certificate, except as
provided in Section 3.13. Unless and until definitive,
fully registered Certificates (the "Definitive Certifi-
cates") have been issued to Certificate Owners pursuant
to Section 3.13:
(i) the provisions of this Section shall
be in full force and effect;
(ii) the Certificate Registrar and the
Owner Trustee shall be entitled to deal with
the Clearing Agency for all purposes of this
Agreement (including the distribution of prin-
cipal of and interest on the Certificates and
the giving of instructions or directions here-
under) as the sole Certificateholder of the
Certificates and shall have no obligation to
the Certificate Owners;
(iii) to the extent that the provisions
of this Section 3.11 conflict with any other
provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(iv) the rights of Certificate Owners
shall be exercised only through the Clearing
Agency and shall be limited to those estab-
lished by law and agreements between such Cer-
tificate Owners and the Clearing Agency and/or
the Clearing Agency Participants. Pursuant to
the Certificate Depository Agreement, unless
and until Definitive Certificates are issued
pursuant to Section 3.13, the initial Clearing
Agency will make book-entry transfers among the
Clearing Agency Participants and receive and
transmit distributions in respect of principal
of and interest on the Certificates to such
Clearing Agency Participants; and
(v) whenever this Agreement requires or
permits actions to be taken based upon instruc-
tions or directions of Certificateholders of
Certificates evidencing a specified percentage
of the Certificate Balance, the Clearing Agency
shall be deemed to represent such percentage
only to the extent that it has received in-
structions to such effect from Certificate
Owners and/or Clearing Agency Participants
owning or representing, respectively, such
required percentage of the beneficial interest
in the Certificates and has delivered such
instructions to the Owner Trustee.]
SECTION 3.13. Notices to Clearing Agency.
[Whenever a notice or other communication to the Certifi-
cateholders is required under this Agreement, unless and
until Definitive Certificates shall have been issued to
Certificate Owners pursuant to Section 3.13, the Owner
Trustee shall give all such notices and communications
specified herein to be given to Certificateholders to the
Clearing Agency, and shall have no obligations to the
Certificate Owners.]
SECTION 3.14. Definitive Certificates. [If
(i) the Administrator advises the Owner Trustee in writ-
ing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect
to the Certificates, and the Administrator is unable to
locate a qualified successor, (ii) the Depositors at
their option advises the Owner Trustee in writing that it
elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event
of Default or an Event of Servicing Termination, Certifi-
cate Owners evidencing beneficial interests aggregating
not less than a majority of the Certificate Balance
advise the Clearing Agency in writing that the continua-
tion of a book-entry system through the Clearing Agency
is no longer in the best interest of the Certificate
Owners, then the Clearing Agency shall notify all Certif-
icate Owners and the Owner Trustee of the occurrence of
any such event and of the availability of the Definitive
Certificates to Certificate Owners requesting the same.
Upon surrender to the Owner Trustee of the typewritten
Certificate or Certificates representing the Book-Entry
Certificates by the Clearing Agency, accompanied by
registration instructions, the Owner Trustee shall exe-
cute and authenticate the Definitive Certificates in
accordance with the instructions of the Clearing Agency.
Neither the Certificate Registrar nor the Owner Trustee
shall be liable for any delay in delivery of such in-
structions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, the Owner Trustee
shall recognize the registered holders of the Definitive
Certificates as Certificateholders. The Definitive
Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably
acceptable to the Owner Trustee, as evidenced by its
execution thereof.]
End of Article III
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificatehold-
ers with Respect to Certain Matters. With respect to the
following matters, the Owner Trustee shall not take
action unless, (I) at least thirty (30) days before the
taking of such action, the Owner Trustee shall have
notified the Certificateholders and the Rating Agencies
in writing of the proposed action and (II) Certificate-
holders holding not less than a majority of the aggregate
Certificate Balance shall not have notified the Owner
Trustee in writing prior to the 30th day after such
notice is given that such Certificateholders have with-
held consent or provided alternative direction:
(a) the initiation of any material claim or
lawsuit by the Trust (except claims or lawsuits
brought by the Servicer in connection with the
collection of the Receivables) and the settlement of
any material action, claim or lawsuit brought by or
against the Trust (except with respect to the afore-
mentioned claims or lawsuits for collection by the
Servicer of the Receivables);
(b) the election by the Trust to file an
amendment to the Certificate of Trust (unless such
amendment is required to be filed under the Business
Trust Statute);
(c) the amendment of the Indenture by a sup-
plemental indenture in circumstances where the
consent of any Noteholder is required;
(d) the amendment of the Indenture by a sup-
plemental indenture in circumstances where the
consent of any Noteholder is not required and such
amendment materially adversely affects the interests
of the Certificateholders;
(e) the amendment, change or modification of
the Sale and Servicing Agreement or the Administra-
tion Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or to
add any provision that would not materially adverse-
ly affect the interests of the Certificateholders;
or
(f) the appointment pursuant to the Indenture
of a successor Note Registrar, Note Paying Agent or
Indenture Trustee, or pursuant to this Agreement of
a successor Certificate Registrar, or the consent to
the assignment by the Note Registrar, Note Paying
Agent or Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2. Action by Certificateholders with
Respect to Certain Matters. The Owner Trustee may not,
except in accordance with the written direction of Cer-
tificateholders holding not less than a majority of the
aggregate Certificate Balance, or upon the occurrence of
an Event of Servicing Termination after the payment in
full of the Notes, (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Article VIII thereof,
(b) appoint a successor Servicer pursuant to Article VIII
of the Sale and Servicing Agreement, (c) remove the
Administrator under the Administration Agreement pursuant
to Section 9 thereof or (d) appoint a successor Adminis-
trator pursuant to Section 9 of the Administration Agree-
ment.
SECTION 4.3. Action by Certificateholders with
Respect to Bankruptcy. The Owner Trustee shall not have
the power to commence a voluntary proceeding in bankrupt-
cy relating to the Trust unless the Notes have been paid
in full and each Certificateholder (other than the Gener-
al Partner ) approves of such commencement in advance and
delivers to the Owner Trustee a certificate certifying
that such Certificateholder reasonably believes that the
Trust is insolvent.
SECTION 4.4. Restrictions on
Certificateholders' Power. The Certificateholders shall
have no authority to direct the Owner Trustee to take or
refrain from taking any action if such action or inaction
would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to Section 2.3.
SECTION 4.5. Majority Control. Except as
expressly provided herein, any action that may be taken
by the Certificateholders under this Agreement may be
taken by the Certificateholders of Certificates evidenc-
ing not less than a majority of the Certificate Balance.
Except as expressly provided herein, any written notice
of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificate-
holders of Certificates evidencing not less than a major-
ity of the Certificate Balance at the time of the deliv-
ery of such notice.
End of Article IV
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate
Distribution Account. Pursuant to Section [4.1(c)] of
the Sale and Servicing Agreement, there has been estab-
lished and there shall be maintained a segregated trust
account in the name of the Owner Trustee at a [Qualified
Institution or Qualified Trust Institution] (which shall
initially be _____________), which designated as the
"Certificate Distribution Account." The Certificate
Distribution Account shall be held in trust in the name
of the Owner Trustee for the benefit of the Certificate-
holders. Except as expressly provided in Section 3.9,
the Certificate Distribution Account shall be under the
sole dominion and control of the Owner Trustee. All
monies deposited from time to time in the Certificate
Distribution Account pursuant to the Sale and Servicing
Agreement shall be applied as provided in the Basic
Documents. In the event that the Certificate Distribu-
tion Account is no longer to be maintained at the corpo-
rate trust department of ____________, the Servicer
shall, with the Owner Trustee's assistance as necessary,
cause the Certificate Distribution Account to be moved to
a Qualified Institution or a Qualified Trust Institution
within ten (10) Business Days (or such longer period not
to exceed thirty (30) calendar days as to which each
Rating Agency may consent).
SECTION 5.2. Application of Trust Funds.
(a) On each Distribution Date, the Owner
Trustee (if other than the Certificate Paying Agent)
shall, based on the information contained in the
Servicer's Certificate delivered on the relevant Determi-
nation Date pursuant to Section [3.9] of the Sale and
Servicing Agreement, transfer the amount deposited in the
Certificate Distribution Account pursuant to Section
[4.6(c)] of the Sale and Servicing Agreement on such
Distribution Date to the Certificate Paying Agent, or the
Certificate Paying Agent, based upon such information,
shall withdraw from the Certificate Distribution Account,
for distribution to the Certificateholders on a pro rata
basis, to the extent of funds available, in the following
order of priority:
(i) first, an amount equal to the Accrued
Certificate Interest; and
(ii) second, an amount equal to the
Certificateholders' Regular Principal.
(b) On each Distribution Date, the Owner
Trustee shall, or shall cause the Certificate Paying
Agent to, send to each Certificateholder the statement
provided to the Owner Trustee by the Servicer pursuant to
Section [4.9] of the Sale and Servicing Agreement with
respect to such Distribution Date.
(c) In the event that any withholding tax is
imposed on the Trust's payment (or allocations of income)
to a Certificateholder, such tax shall reduce the amount
otherwise distributable to such Certificateholder in
accordance with this Section 5.2. The Owner Trustee and
each Certificate Paying Agent is hereby authorized and
directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the pay-
ment of any such withholding tax that is legally owed by
the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceed-
ings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate
taxing authority. If there is a possibility that with-
holding tax is payable with respect to a distribution
(such as a distribution to a non-U.S. Certificateholder),
the Owner Trustee may, in its sole discretion, withhold
such amounts in accordance with this paragraph (d). In
the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee
shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder
agrees to reimburse the Owner Trustee for any out-of-
pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to
Section 9.1(c), distributions required to be made to
Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately
available funds, to the account of such Certificateholder
at a bank or other entity having appropriate facilities
therefor, if (i) such Certificateholder shall have pro-
vided to the Certificate Registrar appropriate written
instructions at least five (5) Business Days prior to
such Distribution Date and such Certificateholder's
Certificates in the aggregate evidence a denomination of
not less than $1,000,000, or (ii) such Certificateholder
is the General Partner or, if not, by check mailed to
such Certificateholder at the address of such Certifi-
cateholder appearing in the Certificate Register; provid-
ed, however, that, unless Definitive Certificates have
been issued pursuant to Section 3.13, with respect to
Certificates registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), distributions will be made by
wire transfer in immediately available funds to the
account designated by such nominee. Notwithstanding the
foregoing, the final distribution in respect of any
Certificate (whether on the Final Scheduled Distribution
Date or otherwise) will be payable only upon presentation
and surrender of such Certificate at the office or agency
maintained for that purpose by the Owner Trustee pursuant
to Section 3.8.
SECTION 5.4. No Segregation of Monies; No
Interest. Subject to Sections 5.1 and 5.2, monies re-
ceived by the Owner Trustee hereunder need not be segre-
gated in any manner except to the extent required by law
or the Indenture or the Sale and Servicing Agreement and
may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.5. Accounting and Reports to the
Noteholders, Certificateholders, the Internal Revenue
Service and Others. The Owner Trustee shall, based on
information provided by or on behalf of the Depositors,
(a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis on the accrual method of
accounting, (b) deliver (or cause to be delivered) to
each Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as
may be required (including Schedule K-1) to enable each
Certificateholder to prepare its federal and state income
tax returns, (c) file (or cause to be filed) such tax
returns relating to the Trust (including a partnership
information return, IRS Form 1065), and make such elec-
tions as may from time to time be required or appropriate
under any applicable state or federal statute or rule or
regulation thereunder so as to maintain or confirm the
Trust's characterization as a partnership for federal
income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect (or
cause to be collected) any withholding tax as described
in and in accordance with Section 5.2(c) with respect to
income or distributions to Certificateholders. The Owner
Trustee shall elect under Section 1278 of the Code to
include in income currently any market discount that
accrues with respect to the Receivables. The Owner
Trustee shall not make the election provided under Sec-
tion 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters
Partner. (a) [NB-SPC], as General Partner for income
tax purposes, shall sign, on behalf of the Trust, the tax
returns of the Trust.
(b) [NB-SPC] shall be designated the "tax
matters partner" of the Trust pursuant to Section
6231(a)(7)(A) of the Code and applicable Treasury Regula-
tions.
End of Article V
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner
Trustee is authorized and directed to execute and deliver
the Basic Documents to which the Trust is to be a party
and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or
other agreement, in each case, in such form as the Depos-
itors shall approve, as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositors'
execution of this Agreement, and to direct the Indenture
Trustee to authenticate and deliver Notes in the aggre-
gate principal amount of $__________. In addition to the
foregoing, the Owner Trustee is authorized to take all
actions required of the Trust pursuant to the Basic
Documents. The Owner Trustee is further authorized to
take from time to time such action on behalf of the Trust
as is permitted by the Basic Documents and which the
Servicer or the Administrator recommends with respect to
the Basic Documents, except to the extent that this
Agreement expressly requires the consent of Certificate-
holders for such action.
SECTION 6.2. General Duties. It shall be the
duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the
terms of this Agreement and the other Basic Documents to
which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to the
lien of the Indenture and in accordance with the provi-
sions of this Agreement and the other Basic Documents.
Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement
to perform any act or to discharge such duty of the Owner
Trustee or the Trust hereunder or under any other Basic
Document, and the Owner Trustee shall not be held liable
for the default or failure of the Administrator to carry
out its obligations under the Administration Agreement.
Except as expressly provided in the Basic Documents, the
Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, moni-
tor or otherwise supervise the administration, servicing
or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a)
Subject to Article IV, and in accordance with the terms
of the Basic Documents, the Certificateholders may, by
written instruction, direct the Owner Trustee in the
management of the Trust.
(b) The Owner Trustee shall not be required to
take any action hereunder or under any Basic Document if
the Owner Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is
likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any
other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or
required by the terms of this Agreement or any other
Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and
to the extent the Owner Trustee acts in good faith in
accordance with any [written] instruction of the Certifi-
cateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate in-
struction within ten (10) days of such notice (or within
such shorter period of time as reasonably may be speci-
fied in such notice or may be necessary under the circum-
stances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with
this Agreement or the other Basic Documents, as it shall
deem to be in the best interests of the Certificatehold-
ers, and shall have no liability to any Person for such
action or inaction.
(d) In the event the Owner Trustee is unsure
as to the application of any provision of this Agreement
or any other Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in
the event that this Agreement permits any determination
by the Owner Trustee or is silent or is incomplete as to
the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the
Owner Trustee may give notice (in such form as shall be
appropriate under the circumstances) to the Certificate-
holders requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good
faith in accordance with any such written instruction
received, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If
the Owner Trustee shall not have received appropriate
instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent
with this Agreement or the other Basic Documents, as it
shall deem to be in the best interests of the Certifi-
cateholders, and shall have no liability to any Person
for such action or inaction.
SECTION 6.4. No Duties Except as Specified in
this Agreement or in Instructions. The Owner Trustee
shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose
of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under,
or in connection with, any document contemplated hereby
to which the Owner Trustee or the Trust is a party,
except as expressly provided by the terms of this Agree-
ment or in any document or [written] instruction received
by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this
Agreement or any other Basic Document against the Owner
Trustee. [The Owner Trustee shall have no responsibility
for filing any financing or continuation statement in any
public office at any time] or to otherwise perfect or
[maintain] the perfection of any security interest or
lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agree-
ment or any other Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to
discharge any lien (other than the lien of the Indenture)
on any part of the Owner Trust Estate that results from
actions by, or claims against, the Owner Trustee that are
not related to the ownership or the administration of the
Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified
Documents or Instructions. The Owner Trustee shall not
manage, control, use, sell, dispose of or otherwise deal
with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Agree-
ment, (ii) in accordance with the other Basic Documents
to which the Trust or the Owner Trust is a party and
(iii) in accordance with any document or written instruc-
tion delivered to the Owner Trustee pursuant to Section
6.3.
SECTION 6.6. Restrictions. The Owner Trustee
shall not take any action (a) that is inconsistent with
the purposes of the Trust set forth in Section 2.3 or (b)
that, to the actual knowledge of the Owner Trustee, would
(i) affect the treatment of the Notes as indebtedness for
federal income or Applicable Tax State income or fran-
chise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for federal income or Applicable
Tax State income or franchise tax purposes or (iii) cause
the Trust or any portion thereof to be taxable as an
association or publicly traded partnership taxable as a
corporation for federal income or Applicable Tax State
income or franchise tax purposes. The Certificateholders
shall have no authority to direct the Owner Trustee to
take action that would violate the provisions of this
Section 6.6.
End of Article VI
ARTICLE VII
REGARDING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies
actually received by it constituting part of the Owner
Trust Estate upon the terms of this Agreement and the
other Basic Documents to which the Trust or Owner Trustee
is a party.. The Owner Trustee shall not be answerable
or accountable hereunder or under any other Basic Docu-
ment under any circumstances, except (i) for its own
misconduct, bad faith or negligence or (ii) in the case
of the inaccuracy of any representation or warranty
contained in Section 7.3 . In particular, but not by way
of limitation (and subject to the exceptions set forth in
the preceding sentence):
(a) the Owner Trustee shall not be liable for
any error of judgment made by a responsible officer
of the Owner Trustee;
(b) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken
by it in accordance with the instructions of any
Certificateholder, the Indenture Trustee, any Depos-
itor, the General Partner, the Administrator or the
Servicer;
(c) no provision of this Agreement or any
other Basic Document shall require the Owner Trustee
to expend or risk funds or otherwise incur any
financial liability in the performance of any of its
rights or powers hereunder or under any other Basic
Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability
is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner
Trustee be liable for indebtedness evidenced by or
arising under any of the Basic Documents, including
the principal of and interest on the Notes or
amounts distributable on the Certificates;
(e) the Owner Trustee shall not be responsible
for or in respect of the validity or sufficiency of
this Agreement or for the due execution hereof by
any of the Depositors or for the form, character,
genuineness, sufficiency, value or validity of any
of the Owner Trust Estate or for or in respect of
the validity or sufficiency of the other Basic
Documents, other than the certificate of authentica-
tion on the Certificates, and the Owner Trustee
shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided
for herein and in the other Basic Documents;
(f) the Owner Trustee shall not be liable for
the default or misconduct of the Servicer, the
Administrator, the Depositors or the Indenture
Trustee under any of the Basic Documents or other-
wise and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Trust
under this Agreement or the other Basic Documents
that are required to be performed by the Administra-
tor under the Administration Agreement, the Servicer
under the Sale and Servicing Agreement or the Inden-
ture Trustee under the Indenture; and
(g) the Owner Trustee shall be under no obli-
gation to exercise any of the rights or powers
vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agree-
ment or otherwise or in relation to this Agreement
or any other Basic Document, at the request, order
or direction of any of the Certificateholders,
unless such Certificateholders have offered to the
Owner Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement
or in any other Basic Document shall not be con-
strued as a duty, and the Owner Trustee shall not be
answerable for other than its misconduct, bad faith
or negligence in the performance of any such act.
SECTION 7.2. Furnishing of Documents. The
Owner Trustee shall furnish to the Certificateholders,
promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the
Basic Documents.
SECTION 7.3. Representations and Warranties.
The Owner Trustee hereby represents and warrants to the
Depositors, for the benefit of the Certificateholders,
that:
(a) It is a banking corporation duly organized
and validly existing in good standing under the laws
of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) It has taken all corporate action neces-
sary to authorize the execution and delivery by it
of this Agreement, and this Agreement will be exe-
cuted and delivered by one of its officers who is
duly authorized to execute and deliver this Agree-
ment on its behalf.
[(c) Neither the execution nor the delivery by
it of this Agreement, nor the consummation by it of
the transactions contemplated hereby nor compliance
by it with any of the terms or provisions hereof
will contravene any federal or Delaware state law,
governmental rule or regulation governing the bank-
ing or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any
default under its charter documents or by-laws or
any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of
its properties may be bound.]
SECTION 7.4. Reliance; Advice of Counsel. (a)
The Owner Trustee may rely upon, shall be protected in
relying upon, and shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolu-
tion, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it
in good faith to be genuine and believed by it in good
faith to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution
of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolu-
tion has been duly adopted by such body and that the same
is in full force and effect. As to any fact or matter
the method of the determination of which is not specifi-
cally prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or
other authorized officers of the relevant party, as to
such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken
or omitted to be taken by it in good faith in reliance
thereon.
(b) In the exercise or administration of the
trusts hereunder and in the performance of its duties and
obligations under this Agreement or the other Basic
Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements
entered into with any of them, and the Owner Trustee
shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall
have been selected by the Owner Trustee with reasonable
care, and (ii) may consult with counsel, accountants and
other skilled Persons to be selected with reasonable care
and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or
advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any other
Basic Document.
SECTION 7.5. Not Acting in Individual Capaci-
ty. Except as provided in this Article VII, in accepting
the trusts hereby created, _______________ acts solely as
Owner Trustee hereunder and not in its individual capaci-
ty, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by
this Agreement or any other Basic Document shall look
only to the Owner Trust Estate for payment or satisfac-
tion thereof.
SECTION 7.6. Owner Trustee Not Liable for
Certificates or Receivables. The recitals contained
herein and in the Certificates (other than the signature
and countersignature of the Owner Trustee on the Certifi-
cates) shall be taken as the statements of the Deposi-
tors, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this
Agreement, of any other Basic Document or of the Certifi-
cates (other than the signature and countersignature of
the Owner Trustee on the Certificates) or the Notes
(other than the signature of the Owner Trustee thereon),
or of any Receivable or related documents. The Owner
Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection
and priority of any security interest created by any
Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority, or for or with respect
to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to
Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of
any Financed Vehicle; the existence and enforceability of
any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the
validity of the assignment of any Receivable to the Trust
or any intervening assignment; the completeness of any
Receivable; the performance or enforcement of any Receiv-
able; the compliance by the Depositors or the Servicer
with any warranty or representation made under any Basic
Document or in any related document, or the accuracy of
any such warranty or representation or any action of the
Indenture Trustee, the Administrator or the Servicer or
any subservicer taken in the name of the Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certifi-
cates and Notes. The Owner Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Certificates or Notes and may deal with any Depositor,
the Servicer, the Administrator and the Indenture Trustee
in banking transactions with the same rights as it would
have if it were not Owner Trustee.
End of Article VII
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expens-
es. The Owner Trustee shall receive as compensation for
its services hereunder such fees as have been separately
agreed upon before the date hereof between the Depositors
and the Owner Trustee, and the Owner Trustee shall be
entitled to and reimbursed by the Depositors for its
other reasonable expenses hereunder, including the rea-
sonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
SECTION 8.2. Indemnification. The Depositors
shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemni-
fied Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and ex-
penses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred
by, or asserted against the Owner Trustee or any Indemni-
fied Party in any way relating to or arising out of this
Agreement, the other Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or
the action or inaction of the Owner Trustee hereunder;
provided that the Depositors shall not be liable for or
required to indemnify an Indemnified Party from and
against Expenses arising or resulting from (i) the Indem-
nified Party's own misconduct, bad faith or negligence,
or (ii) the inaccuracy of any representation or warranty
contained in Section 7.3. The indemnities contained in
this Section 8.2 shall survive the resignation or termi-
nation of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceed-
ing for which indemnity will be sought pursuant to this
Section 8.2, the Owner Trustee's choice of legal counsel
shall be subject to the approval of the Depositors, which
approval shall not be unreasonably withheld. The Deposi-
tors shall not be obligated to indemnify the Indemnified
Parties for the legal fees and expenses of more than one
legal counsel. The Owner Trustee shall promptly satisfy
the Depositors of the commencement of any action in
connection with which indemnity hereunder may be sought.
SECTION 8.3. Payments to the Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this
Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately upon receipt of such
payment by the Owner Trustee.
End of Article VIII
ARTICLE IX
TERMINATION
SECTION 9.1. Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Article
VIII) and the Trust shall terminate and be of no further
force or effect, (i) upon the payment to the Noteholders
and the Certificateholders of all amounts required to be
paid to them pursuant to the terms of the Indenture, the
Sale and Servicing Agreement and Article V or (ii) at the
time provided in Section 9.2. Any Insolvency Event,
liquidation, dissolution, death or incapacity with re-
spect to any Certificateholder, other than the General
Partner as described in Section 9.2, shall not (x) oper-
ate to terminate this Agreement or the Trust, nor (y)
entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of
all or any part of the Trust or Owner Trust Estate nor
(z) otherwise affect the rights, obligations and liabili-
ties of the parties hereto.
(b) Except as provided in Section 9.1(a), none
of the Depositors, the General Partner nor any Certifi-
cateholder shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust,
specifying the Distribution Date upon which the Certifi-
cateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distri-
bution and cancellation, shall be given by the Owner
Trustee by letter to Certificateholders mailed within
five (5) Business Days of receipt of notice of such
termination from the Servicer, stating (i) the Distribu-
tion Date upon or with respect to which final payment of
the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Cer-
tificate Paying Agent therein designated, (ii) the amount
of any such final payment and (iii) that the Record Date
otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the
Certificate Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Regis-
trar (if other than the Owner Trustee) and the Certifi-
cate Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of
the Certificates, the Certificate Paying Agent shall
cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to
Section 5.2.
In the event that all of the Certificateholders
shall not surrender their Certificates for cancellation
within six (6) months after the date specified in the
above mentioned written notice, the Owner Trustee shall
give a second written notice to the remaining Certifi-
cateholders to surrender their Certificates for cancella-
tion and receive the final distribution with respect
thereto. If within one year after the second notice all
the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning
surrender of their Certificates and the cost thereof
shall be paid out of the funds and other assets that
shall remain subject to this Agreement. Subject to
applicable escheat laws, any funds remaining in the Trust
after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositors.
(d) Upon final distribution of any funds
remaining in the Trust, the Owner Trustee shall cause the
Certificate of Trust to be cancelled by filing a certifi-
cate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810(c) of the
Business Trust Statute.
SECTION 9.2. Dissolution upon Insolvency or
Dissolution of a Depositor or General Partner. Notwith-
standing the provisions of Section 3808 of the Business
Trust Statute, in the event that an Insolvency Event or a
dissolution shall occur with respect to [a Depositor] or
the General Partner, the Receivables, to the extent not
inconsistent with the Indenture, shall be sold and this
Agreement and the Trust shall be terminated in accordance
with Section 9.1 ninety (90) days after the date of such
Insolvency Event or dissolution, unless, before the end
of such 90-day period, the Owner Trustee shall have
received written instructions from (a) Certificateholders
(other than the Depositors, the Servicer or their Affili-
ates) of Certificates evidencing not less than a majority
of the Certificate Balance and a majority of the right to
receive distributions in respect of return on the Certif-
icate Balance, (b) the Noteholders (other than the Depos-
itors, the Servicer or their Affiliates) of Notes evi-
dencing not less than a majority of the principal amount
of the Notes Outstanding and a majority of the right to
receive interest on the Notes Outstanding, and (c) hold-
ers of other interests, if any (the existence of which
interests the Administrator will have advised the Owner
Trustee in writing), in the [Reserve Account] (other than
the Depositors, the Servicer or their Affiliates) having
interests with a value not less than a majority of the
value of all interests in the [Reserve Account], to the
effect that each such party disapproves of the liquida-
tion of the Receivables and termination of the Trust and
in connection therewith the Indenture Trustee (i) ap-
points an entity acceptable to NationsBank Corporation to
acquire an interest in the Trust and to act as substitute
"general partner" of the Trust for federal income tax
purposes and (ii) obtains an Opinion of Counsel that the
Trust will not thereafter be classified as an association
(or publicly traded partnership) taxable as a corporation
for federal income tax and Applicable Tax State purposes.
Promptly after the occurrence of any Insolvency Event or
dissolution with respect to [a Depositor or] the General
Partner, (A) such [Depositor][General Partner] shall give
the Indenture Trustee and the Owner Trustee written
notice of such Insolvency Event, (B) the Owner Trustee
shall, upon the receipt of such written notice from [such
Depositor][NB-SPC], give prompt written notice to the
Certificateholders, holders of interests, if any, in the
[Reserve Account] and the Indenture Trustee, of the
occurrence of such event, (C) the Indenture Trustee
shall, upon receipt of written notice of such Insolvency
Event or dissolution from the Owner Trustee or [a Deposi-
tor][NB-SPC], give prompt written notice to the
Noteholders of the occurrence of such event, and (D) the
Owner Trustee shall, upon receipt of written instructions
from the applicable percentages of Noteholders, Certifi-
cateholders and holders of interests, if any, in the
[Reserve Account] disapproving of liquidation and termi-
nation, give prompt written notice thereof to the Inden-
ture Trustee; provided, however, that any failure to give
a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant
to the first sentence of this Section 9.2. Upon a termi-
nation pursuant to this Section 9.2, the Owner Trustee
shall direct the Indenture Trustee promptly to sell the
assets of the Trust (other than the Trust Accounts, [the
Reserve Account, the Yield Supplement Account] and the
Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms.
The proceeds of such a sale of the assets of the Trust
shall be treated as collections of Receivables under the
Sale and Servicing Agreement and deposited in the Collec-
tion Account and the Notes and Certificates shall be paid
in accordance with Section 4.6 of the Sale and Servicing
Agreement.
SECTION 9.3. Redemption of Certificates. (a)
The Certificates shall be redeemed in whole, but not in
part, without premium or penalty, at the direction of the
Servicer pursuant to Section 9.1(a) of the Sale and
Servicing Agreement, on any Distribution Date on which
the Servicer exercises its option to purchase the assets
of the Trust pursuant to said Section 9.1(a), and the
amount paid by the Servicer shall be treated as collec-
tions of Receivables and applied to pay the unpaid prin-
cipal amount of the Notes and the Certificates plus
accrued and unpaid interest thereon. The Servicer shall
furnish the Rating Agencies and the Certificateholders
notice of such redemption. If the Certificates are to be
redeemed pursuant to this Section 9.3(a), the Servicer
shall furnish notice of such election to the Owner Trust-
ee not later than twenty (20) days prior to the Redemp-
tion Date and the Trust shall deposit by 10:00 A.M. (New
York City time) on the Redemption Date in the Certificate
Distribution Account the Redemption Price of the Certifi-
cates to be redeemed, whereupon all such Certificates
shall be due and payable on the Redemption Date.
(b) Notice of redemption under Section 9.3(a)
shall be given by the Owner Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted
immediately following receipt of notice from the Trust or
Servicer pursuant to Section 9.3(a), but not later than
ten (10) days prior to the applicable Redemption Date, to
each Certificateholder as of the close of business on the
Record Date preceding the applicable Redemption Date, at
such Certificateholder s address or facsimile number
appearing in the Certificate Register.
All notices of Redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Certificates
are to be surrendered for payment of the
Redemption Price (which shall be the office
or agency of the Owner Trustee to be main-
tained as provided in Section 3.8).
Notice of redemption of the Certificates shall be given
by the Owner Trustee in the name and at the expense of
the Trust. Failure to give notice of redemption, or any
defect therein, to any Certificateholder shall not impair
or affect the validity of the redemption of any other
Certificate.
(c) Following notice of redemption as required
by Section 9.3(b), the Certificates shall on the Redemp-
tion Date be paid by the Trust at the Redemption Price
and (unless the Trust shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemp-
tion Price for any period after the date to which accrued
interest is calculated for purposes of calculating the
Redemption Price. Following payment in full of the
Redemption Price, this Agreement and the Trust shall
terminate.
End of Article IX
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for
Owner Trustee. The Owner Trustee shall at all times (i)
be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; (ii) be authorized
to exercise corporate trust powers; (iii) have a combined
capital and surplus of at least $50,000,000 and shall be
subject to supervision or examination by federal or state
authorities; and (iv) shall have (or shall have a parent
that has) a long-term debt rating of investment grade by
each of the Rating Agencies or be otherwise acceptable to
the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section
10.1, the combined capital and surplus of such corpora-
tion shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi-
tion so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provi-
sions of this Section 10.1, the Owner Trustee shall
resign immediately in the manner and with the effect
specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner
Trustee. The Owner Trustee may at any time resign and be
discharged from the trusts hereby created by giving
written notice thereof to the Administrator. Upon re-
ceiving such notice of resignation, the Administrator
shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner
Trustee and one copy to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed
and have accepted appointment within thirty (30) days
after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of compe-
tent jurisdiction for the appointment of a successor
Owner Trustee; provided, however, that such right to
appoint or to petition for the appointment of any such
successor shall in no event relieve the resigning Owner
Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in
fact assumed such appointment.
If at any time the Owner Trustee shall cease to
be eligible in accordance with the provisions of Section
10.1 and shall fail to resign after written request
therefor by the Administrator, or if at any time the
Owner Trustee shall be legally unable to act, or if at
any time an Insolvency Event with respect to the Owner
Trustee shall have occurred and be continuing, then the
Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner
Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to
any of the provisions of this Section 10.2 shall not
become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.3, payment
of all fees and expenses owed to the outgoing Owner
Trustee and the filing of a certificate of amendment to
the Certificate of Trust if required by the Business
Trust Statute. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to the
Certificateholders, the Indenture Trustee, the
Noteholders and each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any
successor Owner Trustee appointed pursuant to Section
10.2 shall execute, acknowledge and deliver to the Admin-
istrator and to its predecessor Owner Trustee an instru-
ment accepting such appointment under this Agreement.
Upon the resignation or removal of the predecessor Owner
Trustee becoming effective pursuant to Section 10.2, such
successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the
rights, powers, duties, and obligations of its predeces-
sor under this Agreement, with like effect as if origi-
nally named as Owner Trustee. The predecessor Owner
Trustee shall, upon payment by the Depositors of the
Owner Trustee's accrued fees and expenses, deliver to the
successor Owner Trustee all documents and statements and
monies held by it under this Agreement, and the Adminis-
trator and the predecessor Owner Trustee shall execute
and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vest-
ing and confirming in the successor Owner Trustee all
such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept ap-
pointment as provided in this Section 10.3 unless, at the
time of such acceptance, such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor
Owner Trustee pursuant to this Section 10.3, the Adminis-
trator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee,
the Noteholders and the Rating Agencies. If the Adminis-
trator shall fail to mail such notice within ten (10)
days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause
such notice to be mailed at the expense of the Adminis-
trator.
SECTION 10.4. Merger or Consolidation of Owner
Trustee. Any corporation into which the Owner Trustee
may be merged or converted or with which it may be con-
solidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the
Owner Trustee, shall, without the execution or filing of
any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary
notwithstanding, be the successor of the Owner Trustee
hereunder; provided that such corporation shall be eligi-
ble pursuant to Section 10.1; and provided further, that
the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies not less than fif-
teen (15) days prior to the effective date thereof.
SECTION 10.5. Appointment of Co-Trustee or
Separate Trustee. Notwithstanding any other provisions
of this Agreement, at any time, for the purpose of meet-
ing any legal requirements of any jurisdiction in which
any part of the Owner Trust Estate or any Financed Vehi-
cle may at the time be located, the Administrator and the
Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one
or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person, in such capacity, such
title to the Owner Trust Estate, or any part thereof,
and, subject to the other provisions of this Section
10.5, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider
necessary or desirable. If the Administrator shall not
have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appoint-
ment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligi-
bility as a successor trustee pursuant to Section 10.1
and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section
10.3.
Each separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject
to the following provisions and conditions:
(i) all rights, powers, duties, and obliga-
tions conferred or imposed upon the Owner Trustee
shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in
such act), except to the extent that under any law
of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties,
and obligations (including the holding of title to
the Trust or any portion thereof in any such juris-
diction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission
of any other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resigna-
tion of or remove any separate trustee or co-trust-
ee.
Any notice, request or other writing given to
the Owner Trustee shall be deemed to have been given to
each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instru-
ment appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Arti-
cle X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to
the Administrator.
Any separate trustee or co-trustee may at any
time appoint the Owner Trustee as its agent or attorney-
in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name.
If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new
or successor trustee.
End of Article X
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a)
This Agreement may be amended by the Depositors and the
Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders
or the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions in this Agreement
inconsistent with any other provision of this Agreement
or for the purpose of adding any provisions to or chang-
ing in any manner or eliminating any of the provisions in
this Agreement; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel satisfactory
to the Owner Trustee and the Indenture Trustee adversely
affect in any material respect the interests of any
Noteholder or Certificateholder; and provided further
that an Opinion of Counsel shall be furnished to the
Indenture Trustee and the Owner Trustee to the effect
that such amendment (A) will not materially adversely
affect the federal or any Applicable Tax State income or
franchise taxation of any outstanding Note or Certifi-
cate, or any Noteholder or Certificateholder and (B) will
not cause the Trust to be taxable as a corporation for
federal or any Applicable Tax State income or franchise
tax purposes.
(b) This Agreement may also be amended from
time to time by the Depositors and the Owner Trustee,
with prior written notice to the Rating Agencies, with
the consent of (i) the Noteholders of Notes evidencing
not less than a majority of the principal amount of the
Notes Outstanding and (ii) the Certificateholders of
Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provi-
sions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificate-
holders; provided, however, that no such amendment shall
(i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, or change the alloca-
tion or priority of, collections of payments on Receiv-
ables or distributions that are required to be made for
the benefit of the Noteholders or the Certificateholders,
or (ii) reduce the aforesaid percentage of the principal
amount of the Notes Outstanding and the Certificate
Balance required to consent to any such amendment, with-
out the consent of all the Noteholders and Certificate-
holders affected thereby; and provided further, that an
Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such
amendment (A) will not materially adversely affect the
federal or any Applicable Tax State income or franchise
taxation of any outstanding Note or Certificate, or any
Noteholder or Certificateholder and (B) will not cause
the Trust to be taxable as a corporation for federal or
any Applicable Tax State income or franchise tax purpos-
es.
(c) Promptly after the execution of any such
amendment or consent, the Owner Trustee shall furnish
written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture
Trustee and each of the Rating Agencies.
(d) It shall not be necessary for the consent
of Certificateholders, the Noteholders or the Indenture
Trustee pursuant to this Section 11.1 to approve the
particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents
(and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and
of evidencing the authorization of the execution thereof
by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amend-
ment to the Certificate of Trust, the Owner Trustee shall
cause the filing of such amendment with the Secretary of
State.
(f) Prior to the execution of any amendment to
this Agreement or the Certificate of Trust, the Owner
Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement.
The Owner Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this
Agreement or otherwise.
(g) In connection with the execution of any
amendment to this Agreement or any amendment to any other
agreement to which the Trust is a party, the Owner Trust-
ee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel to the effect that such amend-
ment is authorized or permitted by the Basic Documents
and that all conditions precedent in the Basic Documents
for the execution and delivery thereof by the Trust or
the Owner Trustee, as the case may be, have been satis-
fied.
SECTION 11.2. No Legal Title to Owner Trust
Estate in Certificateholders. The Certificateholders
shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to
receive distributions with respect to their beneficial
interests therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of
any right, title, or interest of the Certificateholders
to and in their beneficial interest in the Owner Trust
Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an account-
ing or to the transfer to it of legal title to any part
of the Owner Trust Estate.
SECTION 11.3. Limitation on Rights of Others.
Except for Section 2.7, the provisions of this Agreement
are solely for the benefit of the Owner Trustee, the
General Partner, the Depositors, the Administrator, the
Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement (other than
Section 2.7), whether express or implied, shall be con-
strued to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under
or in respect of this Agreement or any covenants, condi-
tions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise
expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business
Days after mailing if mailed by certified mail, postage
prepaid (except that notice to the Owner Trustee shall be
deemed given only upon actual receipt by the Owner Trust-
ee), if to the Owner Trustee, addressed to the Corporate
Trust Office; if to a Depositor, addressed to
[NationsBank, N.A., on behalf of the Depositors to the
NationsBank Auto Owner Trust 19_-_, NationsBank Corporate
Plaza, 100 North Tryon Street, NC1-007-20-01, Charlotte,
North Carolina 28255, Attention: Robert W. Long, Jr.,
Esq.; or, as to each party, at such other address as
shall be designated by such party in a written notice to
each other party.
(b) Any notice required or permitted to be
given to a Certificateholder shall be given by first-
class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.5. Severability. Any provision of
this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffec-
tive to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other
jurisdiction.
SECTION 11.6. Separate Counterparts. This
Agreement may be executed by the parties hereto in sepa-
rate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
shall together constitute but one and the same instru-
ment.
SECTION 11.7. Successors and Assigns. All
covenants and agreements contained herein shall be bind-
ing upon, and inure to the benefit of, the Depositors,
the General Partner, the Owner Trustee and its successors
and each Certificateholder and its successors and permit-
ted assigns, all as herein provided. Any request, no-
tice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
SECTION 11.8. No Petition. The Owner Trustee
(not in its individual capacity but solely as Owner
Trustee), by entering into this Agreement, and each
Certificateholder or Certificate Owner, by accepting a
Certificate or, in the case of a Certificate Owner, a
beneficial interest in a Certificate, hereby covenant and
agree that they will not, until after the Notes have been
paid in full, institute against the General Partner or
the Trust, or join in any institution against the General
Partner or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States federal or
state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this
Agreement or any of the other Basic Documents.
SECTION 11.9. No Recourse. Each Certificate-
holder or Certificate Owner, by accepting a Certificate
or, in the case of a Certificate Owner, a beneficial
interest in a Certificate, acknowledges that such
Certificateholder's Certificates or such Certificate
Owner's beneficial interest in a Certificate represent
beneficial interests in the Trust only and do not repre-
sent interests in or obligations of the Depositors, the
General Partner, the Servicer, the Administrator, the
Owner Trustee, the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties
or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the
other Basic Documents.
SECTION 11.10. Headings. The headings of the
various Articles and Sections herein are for convenience
of reference only and shall not define or limit any of
the terms or provisions hereof.
SECTION 11.11. Governing Law. This Agreement
shall be construed in accordance with the laws of the
State of Delaware and the obligations, rights and reme-
dies of the parties hereunder shall be determined in
accordance with such laws.
SECTION 11.12. Maintenance of Net Worth. The
General Partner shall maintain partnership assets net of
partnership liabilities, exclusive of its partnership
interest or interests in the Trust (or any similar enti-
ty), at least equal to ___________________________.
End of Article XI
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their re-
spective officers hereunto duly authorized, as of the day
and year first above written.
NATIONSBANK, N.A.,
as Depositor
By:_______________________
Name:
Title:
NATIONSBANK, N.A. (SOUTH),
as Depositor
By:_______________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Depositor
By:_______________________
Name:
Title:
[NB-SPC],
as General Partner
By:_______________________
Name:
Title:
______________________________,
not in its individual capacity
but solely as Owner Trustee
By:______________________
Name:
Title:
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER $
R-_____ CUSIP NO.
[CERTIFICATE ISSUED TO CEDE CO.: UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOS-
ITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGIS-
TERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER,PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[CERTIFICATE ISSUED TO [EACH] DEPOSITOR [AND TO THE GENER-
AL PARTNER]: THIS CERTIFICATE IS NOT TRANSFERABLE AND ANY
ATTEMPTED TRANSFER OF THIS CERTIFICATE SHALL BE NULL AND
VOID.]
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET
FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTAND-
ING PRINCIPAL OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NATIONSBANK AUTO OWNER TRUST -
% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the
Trust, as defined below, which property includes a pool of
retail motor vehicle installment sales contracts, secured
by security interests in the motor vehicles financed
thereby, acquired by each of NationsBank, N.A.,
NationsBank, N.A. (South) and NationsBank of Texas, N.A.
(each a "Depositor") and collectively, the "Depositors")
and sold by the Depositors to the Trust. The property of
the Trust (other than the Certificate Distribution Account
and the proceeds thereof) has been pledged to the Inden-
ture Trustee pursuant to the Indenture to secure the
payment of the Notes issued thereunder.
(This Certificate does not represent an interest in or
obligation of NationsBank Corporation, [NB-SPC], any of
the Depositors or any of their respective Affiliates,
except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. is the registered
owner of DOLLARS nonassessable, fully-paid,
beneficial interest in Certificates of NationsBank Auto
Owner Trust - (the "Trust") formed by NationsBank,
N.A., NationsBank, N.A. (South) and NationsBank of Texas,
N.A., each a national banking association (each a "Deposi-
tor" and collectively, the "Depositors"). The Certifi-
cates have an aggregate Initial Certificate Balance of $
and bear interest at a rate of % per annum
(the "Certificate Rate").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
Dated:
,
as Owner Trustee or as Owner Trustee
By:______________________ By: , as
Authorized Officer Authenticating Agent
By:_______________________
Authorized Officer
The Trust was created pursuant to an Amended and
Restated Trust Agreement, dated as of ,
(as from time to time amended, supplemented or otherwise
modified and in effect, the "Trust Agreement"), by and
among the Depositors, [NB-SPC] and , as
owner trustee (the "Owner Trustee"), a summary of certain
of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capital-
ized terms used herein have the meanings assigned to them
in the Trust Agreement.
This Certificate is one of the duly authorized
Certificates designated as " % Asset Backed Certifi-
cates" (herein called the "Certificates"). Issued under
the Indenture, dated as of , (as from
time to time amended, supplemented or otherwise modified
and in effect, the "Indenture"), between the Trust and
, as indenture trustee (in such capacity,
the "Indenture Trustee"), are the Notes designated as
% Class A-1 Asset Backed Notes [and the ______% Class A-2
Asset Backed Notes] [and the % Class A-3 Asset Backed
Notes (collectively, the "Notes"). This Certificate is
issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agree-
ment the Certificateholder of this Certificate by virtue
of the acceptance hereof assents and by which such Certif-
icateholder is bound. The property of the Trust includes
[a pool of fixed rate simple interest retail motor vehicle
installment sales contracts purchased by the Sellers from
motor vehicle dealers (the "Dealers") that provide for the
allocation of payments between principal and interest
according to the simple interest method (collectively, the
"Receivables"), all monies received under the [Initial]
Receivables after the close of business of the Servicer on
, 1996 (the "[Initial] Cut-Off Date") [and all
monies received under the Subsequent Receivables after the
close of business of the Servicer on each applicable
Subsequent Transfer Date] and will also include: (i) such
amounts as from time to time are on deposit in one or more
accounts maintained pursuant to the Sale and Servicing
Agreement to be dated as of , 199 (as amended
and supplemented from time to time, the "Sale and Servic-
ing Agreement"), among the Trust, the Sellers and the
Servicer [and the Collateral Agent], as described herein[,
including the Yield Supplement Account][and the Pre-Fund-
ing Account]; (ii) security interests in the new and used
automobiles, vans and light-duty trucks financed thereby
(collectively, the "Financed Vehicles") and any accessions
thereto; (iii) the Sellers' rights (if any) to receive
proceeds from claims under certain insurance policies
covering the Financed Vehicles or the obligors under the
Receivables (each, an "Obligor"), as the case may be; (iv)
certain rights of the Trust to receive payments from the
Reserve Account [and pursuant to the Yield Supplement
Agreement] as described below; (v) any property that shall
have secured a Receivable and shall have been acquired by
the Trust; (vi) each Seller's rights relating to the
repurchase of Receivables under agreements between each
Seller and the Dealers that sold the Financed Vehicles to
the Obligors and any assignments and other documents
related thereto (collectively, the "Dealer Agreements")
and under the documents and instruments contained in the
Receivable Files; (vii) certain rebates of premiums and
other amounts relating to certain insurance policies and
other items financed under the Receivables; (viii) the
rights of the Trust under the Sale and Servicing Agree-
ment; and (ix) any and all proceeds of the foregoing.][
The Reserve Account [and the Yield Supplement Account,]
and any amounts therein, will not be property of the
Trust, but will be pledged to and held by ________ acting
in its capacity as property-holding agent for the benefit
of the Certificateholders (the "Collateral Agent").] THE
RIGHTS OF THE OWNER TRUSTEE IN THE FOREGOING PROPERTY OF
THE TRUST (OTHER THAN THE CERTIFICATE DISTRIBUTION ACCOUNT
AND THE PROCEEDS THEREOF) HAVE BEEN PLEDGED TO THE INDEN-
TURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Under the Trust Agreement, there will be dis-
tributed on the day of each month or, if
such _______________ day is not a Business Day, the next
Business Day (each, a "Distribution Date"), commencing
, , to the Person in whose name this Certifi-
cate is registered at the close of business on the day
prior to such Distribution Date or, if Definitive Certifi-
cates have been issued pursuant to Section 3.13 of the
Trust Agreement, the day of the preceding month (the
"Record Date") such Certificateholder's percentage inter-
est in the amount to be distributed to Certificateholders
on such Distribution Date; provided, however, that princi-
pal will be distributed to the Certificateholders on each
Distribution Date on (to the extent of funds remaining
after all classes of the Notes have been paid in full) and
after the date on which all classes of the Notes have been
paid in full. Notwithstanding the foregoing, following
the occurrence and during the continuation of an event of
default under the Indenture which has resulted in an
acceleration of the Notes or following certain events of
insolvency or a dissolution with respect to [any of the
Depositors or] the General Partner, no distributions of
principal or interest will be made on the Certificates
until all the Notes have been paid in full.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND
AGREES THAT ITS RIGHTS TO RECEIVE DISTRIBUTIONS IN RESPECT
OF THIS CERTIFICATE ARE SUBORDINATED TO THE RIGHTS OF THE
NOTEHOLDERS AS DESCRIBED IN THE SALE AND SERVICING AGREE-
MENT, THE INDENTURE AND THE TRUST AGREEMENT.
It is the intent of the Depositors, the General
Partner, the Servicer, the Certificateholders and the
Certificate Owners that, for purposes of federal income,
state and local income tax and any other income taxes, the
Trust will be treated as a partnership and the Certifi-
cateholders [(including the Depositors)] will be treated
as partners in that partnership. The General Partner and
the other Certificateholders by acceptance of a Certifi-
cate (and the Certificate Owners by acceptance of a bene-
ficial interest in a Certificate), agree to treat, and to
take no action inconsistent with the treatment of, the
Certificates for such tax purposes as partnership inter-
ests in the Trust.
Each Certificateholder or Certificate Owner, by
its acceptance of a Certificate or, in the case of a
Certificate Owner, a beneficial interest in a Certificate,
covenants and agrees that such Certificateholder or Cer-
tificate Owner will not at any time institute against the
General Partner or the Trust, or join in any institution
against the General Partner or the Trust of, any bankrupt-
cy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law in connection
with any obligations relating to the Notes, the Certifi-
cates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made
as provided in the Trust Agreement by the Owner Trustee or
the Certificate Paying Agent by wire transfer or check
mailed to the Certificateholder of record in the Certifi-
cate Register without the presentation or surrender of
this Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the
office or agency maintained for the purpose by the Owner
Trustee in The Borough of Manhattan, The City of New York.
Reference is hereby made to the further provi-
sions of this Certificate set forth on the reverse hereof,
which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon
shall have been executed by an authorized officer of the
Owner Trustee, by manual signature, this Certificate shall
not entitle the Certificateholder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agree-
ment or be valid for any purpose.
This Certificate shall be construed in accor-
dance with the laws of the State of Delaware and the
obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
In WITNESS WHEREOF, the Owner Trustee, on behalf
of the Trust and not in its individual capacity, has
caused this Certificate to be duly executed.
NATIONSBANK AUTO OWNER
TRUST -
By: ,
not in its individual capacity
but solely as Owner Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Certificate is one of the certificates
issued pursuant to the above mentioned Trust Agreement.
By: ,
not in its individual capacity but solely as Owner
Trustee
By:
Authorized Officer
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation
of, or an interest in, the Depositors, the General Part-
ner, the Servicer, the Administrator, the Owner Trustee or
any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be
expressly set forth or contemplated herein, in the Trust
Agreement or in the other Basic Documents. In addition,
this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of
payment to certain collections with respect to the Receiv-
ables (and certain other amounts), all as more specifical-
ly set forth herein and in the Sale and Servicing Agree-
ment. A registration statement, which includes a form of
the Trust Agreement as an exhibit thereto, has been filed
with the Securities and Exchange Commission with respect
to the Notes and the Certificates.
The Trust Agreement permits, with certain excep-
tions therein provided, the amendment thereof and the
modification of the rights and obligations of the Deposi-
tors and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositors and the
Owner Trustee with the consent of the Noteholders and the
Certificateholders evidencing not less than a majority of
the principal amount of the Notes Outstanding and the
Certificate Balance, respectively. Any such consent by
the Certificateholder of this Certificate shall be conclu-
sive and binding on such Certificateholder and on all
future Certificateholders of this Certificate and of any
Certificate issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon this Certifi-
cate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the
consent of any of the Certificateholders.
[CERTIFICATE ISSUED TO CEDE & CO: As provided
in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of the Certificates are
registerable in the Certificate Register upon surrender of
this Certificate for registration of transfer at the
offices or agencies maintained by __________ in its capac-
ity as Certificate Registrar, or by any successor Certifi-
cate Registrar, in The Borough of Manhattan, The City of
New York, accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certifi-
cate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereup-
on one or more new Certificates of authorized denomina-
tions evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
Except for Certificates issued to the General
Partner [and to the Depositors], the Certificates are
issuable as registered Certificates without coupons in
denominations of at least $1,000 and in integral multiples
of $1,000 in excess thereof. Certificates are exchange-
able for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested
by the Certificateholder surrendering the same. No ser-
vice charge will be made for any such registration of
transfer or exchange, but the Owner Trustee or the Certif-
icate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection
therewith.]
[CERTIFICATE ISSUED TO THE GENERAL PARTNER [AND
TO THE DEPOSITORS]: As provided in the Trust Agreement,
the transfer of this Certificate is prohibited.]
The Owner Trustee, the Certificate Registrar and
any agent of the Owner Trustee or the Certificate Regis-
trar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or
any such agent shall be affected by any notice to the
contrary.
The Certificate (including any beneficial inter-
ests therein) may not be acquired by or for the account of
(i) an employee benefit plan (as defined in Section 3(3)
of ERISA) that is subject to the provisions of Title I of
ERISA, (ii) a plan described in section 4975(e)(1)j of the
Internal Revenue Code of 1986, as amended (the "Code"),
including an individual retirement account described in
Section 408(a) of the Code or a Keogh plan or (iii) any
entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a
"Benefit Plan"). By accepting and holding this Certifi-
cate or any beneficial interest herein, the Certificate-
holder hereof (or the Certificate Owner of any beneficial
interest hereof) shall be deemed to have represented and
warranted that it is not a Benefit Plan.
The obligations and responsibilities created by
the Trust Agreement and the Trust created thereby shall
terminate upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to
them pursuant to the Indenture, the Trust Agreement and
the Sale and Servicing Agreement and any remaining assets
of the Trust shall be distributed to the Depositors. The
Servicer of the Receivables may at its option purchase the
assets of the Trust at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables
and other property of the Trust will effect early retire-
ment of the Notes and the Certificates; however, such
right of purchase is exercisable only as of the last day
of any Collection Period as of which the Pool Balance is
less than or equal to 5% of the Initial Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________
(Please print or type name and address, including postal
zip code, of assignee)
_________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_________________________________________________________
Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in
the premises.
Dated:
_____________*_____________
Signature Guaranteed:
_____________*_____________
* NOTICE: The signature to this assignment must corre-
spond with the name as it appears upon the face of the
within Certificate in every particular, without alter-
ation, enlargement or any change whatever. Such signature
must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
NATIONSBANK AUTO OWNER TRUST -
This Certificate of Trust of NATIONSBANK AUTO
OWNER TRUST ____-__ (the "Trust"), dated as of __________
__, ____, is being duly executed and filed by
________________________, a Delaware banking corporation,
as trustee, to form a business trust under the Delaware
Business Trust Act (12 Del. Code, SECTION 3801 et seq.).
1. Name. The name of the business trust
formed hereby is NATIONSBANK AUTO OWNER TRUST ____-__.
2. Delaware Trustee. The name and business
address of the trustee of the Trust in the State of Dela-
ware is __________________, ________________, Delaware
_____.
IN WITNESS WHEREOF, the undersigned, being the
sole trustee of the Trust, has executed this Certificate
of Trust as of the date first above written.
______________________,
not in its individual capacity
but solely as owner trustee
under a Trust Agreement dated
as of ________ __, ____
By:
Name:
Title:
EXHIBIT C
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
APPENDIX A
Definitions and Usage
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE . . . . . . . . . 1
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2. Office . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.3. Purposes and Powers . . . . . . . . . . . . . 2
SECTION 2.4. Appointment of Owner Trustee. . . . . . . . . 3
SECTION 2.5. Initial Capital Contribution of Owner
Trust Estate . . . . . . . . . . . . . . . . . 3
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . 3
SECTION 2.7. Liability of the Depositors . . . . . . . . . 4
SECTION 2.8. Title to Trust Property . . . . . . . . . . . 4
SECTION 2.9. Situs of Trust . . . . . . . . . . . . . . . . 5
SECTION 2.10. Representations and Warranties of the Depositors 5
SECTION 2.11. Federal Income Tax Matters . . . . . . . . . . 6
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership . . . . . . . . . 9
SECTION 3.2. The Certificates . . . . . . . . . . . . . . . 9
SECTION 3.3. Authentication of Certificates . . . . . . . . 9
SECTION 3.4. Registration of Certificates; Transfer and Ex-
change of Certificates . . . . . . . . . . . . 10
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . 11
SECTION 3.6. Persons Deemed Owners of Certificate . . . . . 12
SECTION 3.7. Access to List of Certificateholders' Names
and Addresses . . . . . . . . . . . . . . . . 12
SECTION 3.8. Maintenance of Office or Agency . . . . . . . 12
SECTION 3.9. Appointment of Certificate Paying Agent . . . 13
SECTION 3.10. Ownership by General Partner of Certificates . 13
SECTION 3.11 Book-Entry Certificates . . . . . . . . . . . 14
SECTION 3.12. Notices to Clearing Agency . . . . . . . . . . 15
SECTION 3.13. Definitive Certificates . . . . . . . . . . . 15
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with
Respect to Certain Matters . . . . . . . . . . 17
SECTION 4.2. Action by Certificateholders with Respect
to Certain Matters . . . . . . . . . . . . . . 18
SECTION 4.3. Action by Certificateholders with Respect
o Bankruptcy . . . . . . . . . . . . . . . . . 18
SECTION 4.4. Restrictions on Certificateholders'
Power . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.5. Majority Control . . . . . . . . . . . . . . . 18
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution
Account . . . . . . . . . . . . . . . . . . . 19
SECTION 5.2. Application of Trust Funds . . . . . . . . . . 19
SECTION 5.3. Method of Payment . . . . . . . . . . . . . . 20
SECTION 5.4. No Segregation of Monies; No Interest . . . . 21
SECTION 5.5. Accounting and Reports to the Noteholders, Certif-
icateholders, the Internal Revenue Service and
Others . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.6. Signature on Returns; Tax Matters
Partner . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority . . . . . . . . . . . . . . 22
SECTION 6.2. General Duties . . . . . . . . . . . . . . . . 22
SECTION 6.3. Action upon Instruction . . . . . . . . . . . 22
SECTION 6.4. No Duties Except as Specified in this
Agreement or in Instructions . . . . . . . . . 24
SECTION 6.5. No Action Except Under Specified Documents
or Instructions . . . . . . . . . . . . . . . 24
SECTION 6.6. Restrictions . . . . . . . . . . . . . . . . . 24
ARTICLE VII
REGARDING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties . . . . . . . 25
SECTION 7.2. Furnishing of Documents . . . . . . . . . . . 25
SECTION 7.3. Representations and Warranties . . . . . . . . 26
SECTION 7.4. Reliance; Advice of Counsel . . . . . . . . . 27
SECTION 7.5. Not Acting in Individual Capacity . . . . . . 28
SECTION 7.6. Owner Trustee Not Liable for Certificates or Re-
ceivables . . . . . . . . . . . . . . . . . . 28
SECTION 7.7. Owner Trustee May Own Certificates and Notes . 28
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses . . . . . . 29
SECTION 8.2. Indemnification . . . . . . . . . . . . . . . 29
SECTION 8.3. Payments to the Owner Trustee . . . . . . . . 29
ARTICLE IX
TERMINATION
SECTION 9.1. Termination of Trust Agreement . . . . . . . . 30
SECTION 9.2. Dissolution upon Insolvency or Dissolution
of a Depositor or General Partner . . . . . . 31
SECTION 9.3. Redemption of Certificates. . . . . . . . . . 32
ARTICLE X
SUCCESSOR OWNER TRUSTEES
AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee . . 34
SECTION 10.2. Resignation or Removal of Owner Trustee . . . 34
SECTION 10.3. Successor Owner Trustee . . . . . . . . . . . 35
SECTION 10.4. Merger or Consolidation of Owner Trustee . . . 36
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee 36
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments . . . . . . . . . . 38
SECTION 11.2. No Legal Title to Owner Trust Estate in Certifi-
cateholders . . . . . . . . . . . . . . . . . 39
SECTION 11.3. Limitation on Rights of Others . . . . . . . . 40
SECTION 11.4. Notices . . . . . . . . . . . . . . . . . . . 40
SECTION 11.5. Severability . . . . . . . . . . . . . . . . . 40
SECTION 11.6. Separate Counterparts . . . . . . . . . . . . 40
SECTION 11.7. Successors and Assigns . . . . . . . . . . . . 40
SECTION 11.8. No Petition . . . . . . . . . . . . . . . . . 41
SECTION 11.9. No Recourse . . . . . . . . . . . . . . . . . 41
SECTION 11.10. Headings . . . . . . . . . . . . . . . . . . . 41
SECTION 11.11. Governing Law . . . . . . . . . . . . . . . . 41
EXHIBIT A Form of Certificate
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Certificate Depository Agreement
APPENDIX A Definitions and Usage