Exhibit 4.3
NATIONSBANK, N.A.
NATIONSBANK N.A. (SOUTH)
NATIONSBANK OF TEXAS, N.A.,
as Sellers
NATIONSBANK, N.A.,
as Servicer
and
as Trustee
on behalf of the Certificateholders
[and as Collateral Agent]
POOLING AND SERVICING AGREEMENT
Dated as of ____________, ____
NATIONSBANK AUTO GRANTOR TRUST ____-__
_____% Asset Backed Certificates, [Class A]
[_____% Asset Backed Certificates, Class B]
This Pooling and Servicing Agreement, dated as
of ______ __,____, (as amended, supplemented or otherwise
modified and in effect, this "Agreement"), by and among
NATIONSBANK, N.A., NATIONSBANK, N.A. (SOUTH) AND
NATIONSBANK OF TEXAS, N.A., each a national banking
association, as sellers (the "Sellers"), NATIONSBANK,
N.A., as servicer (the "Servicer"), and __________, a
__________ corporation, as trustee hereunder (in such
capacity, the "Trustee") [and as collateral agent with
respect to the Reserve Account] (in such capacity, (the
"Collateral Agent").
In consideration of the premises and of the
mutual agreements herein contained, and other good and
valuable consideration, the receipt of which is acknowl-
edged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
CREATION OF TRUST; CERTAIN
DEFINITIONS AND GENERAL PROVISIONS
SECTION 1.1. Creation of Trust. Upon the
execution of this Agreement by the parties hereto, there
is hereby created the NationsBank Auto Grantor Trust
____-_.
SECTION 1.2. Definitions. Whenever used in
this Agreement, unless the context otherwise requires,
capitalized terms shall have the meanings provided in
Annex A attached hereto.
SECTION 1.3. Usage of Terms. With respect to
all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing
any gender include the other gender and the neuter;
references to "writing" include printing, typing, lithog-
raphy, and other means of reproducing words in a visible
form; references to agreements and other contractual
instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their
respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors
and assigns; and the terms "include" or "including" mean
"include without limitation" or "including without limi-
tation."
SECTION 1.4. Calculations. All calculations
of the amount of interest accrued on the Certificates
during any Collection Period and all calculations of the
amount of the Servicing Fee payable with respect to a
Collection Period shall be made on the basis of a 360-day
year consisting of twelve 30-day months.
SECTION 1.5. References. All references to
the first day of a Collection Period shall refer to the
opening of business on such day. All references to the
last day of a Collection Period shall refer to the close
of business of the Servicer on such day.
SECTION 1.6. Section References. All section
references shall be to Sections in this Agreement unless
otherwise specified.
SECTION 1.7. Action by or Consent of Certifi-
cateholders. Whenever any provision of this Agreement
refers to action to be taken, or consented to, by Certif-
icateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Record Date imme-
diately preceding the date on which such action is to be
taken, or consented to, by Certificateholders.
ARTICLE II
THE TRUST PROPERTY
SECTION 2.1. Conveyance of Trust Property.
(a) In consideration of the delivery to, or upon the
written order of, the Sellers of authenticated Certifi-
cates, in authorized denominations, in an aggregate
amount equal to the Initial Pool Balance and the rights
to receive certain amounts as specified herein, each
Seller hereby sells, transfers, assigns and conveys to
the Trustee for the benefit of the Certificateholders,
upon the terms and conditions hereof, the Trust Property
to the Trust, without recourse. The sale, transfer,
assignment and conveyance made hereunder shall not con-
stitute and is not intended to result in an assumption by
the Trustee, any Certificateholder or any Certificate
Owner of any obligation of the Sellers to the Obligors,
the Dealers or any other Person in connection with the
Receivables and the other Trust Property or any agree-
ment, document or instrument related thereto.
(b) The parties hereto intend that the trans-
fer and conveyance of the Trust Property to the Trust
hereunder constitute a complete sale and assignment to
the Trust of all of the Sellers' right, title and inter-
est in, to and under the Trust Property and that the
beneficial interest of the Sellers in, and title to, the
Trust Property will not be a part of any Seller's estate
in the event of any liquidation, reorganization or simi-
lar insolvency proceeding with respect to a Seller. In
the event that the transfer hereunder is not respected as
a complete sale and assignment of the Trust Property to
the Trust, then, in such event, the Sellers hereby grant
to the Trustee on behalf of the Certificateholders a
security interest in the Trust Property to secure a loan
in an amount equal to the [Initial] Pool Balance. This
Agreement shall constitute a security agreement under
applicable law.
SECTION 2.2. Warranties of Each Seller as to
Each Receivable. Each Seller hereby makes the following
warranties to the Trustee and the Certificateholders as
to each Receivable conveyed by it to the Trust hereunder.
Unless otherwise indicated, such warranties shall speak
as of the Closing Date, but shall survive the sale,
transfer, and assignment of the Receivables and the other
Trust Property to the Trust.
(i) Characteristics of Receivables. The
Receivable has been fully and properly executed by
the parties thereto and (a) has been originated by a
Dealer for the retail sale of a Motor Vehicle in the
ordinary course of such Dealer's business, and has
been purchased by the Seller from such Dealer in the
ordinary course of the Seller's business and in
accordance with the Seller's underwriting standards
to finance the retail sale by a Dealer of the Fi-
nanced Vehicle and has been validly assigned by such
Dealer to the Seller, (b) is secured by a valid,
subsisting, and enforceable first priority security
interest in favor of the Seller in the Financed
Vehicle (subject to administrative delays and cleri-
cal errors on the part of the applicable government
agency and to any statutory or other lien arising by
operation of law after the Closing Date which is
prior to such security interest), which security
interest is assignable together with such Receiv-
able, and has been so assigned, by the Seller to the
Trustee, (c) contains or is accompanied by a securi-
ty agreement which contains customary and enforce-
able provisions such that the rights and remedies of
the secured party are adequate for realization of
the benefits of the security interest in the subject
collateral, (d) provides at origination for level
monthly payments (provided, that the last payment
may be different from the level payment), which
fully amortize the Amount Financed over the original
term and (e) provides for interest at the related
Contract Rate.
(ii) Schedule of Receivables. The infor-
mation set forth in the Schedule of Receivables with
respect to such Receivable has been produced from
the Electronic Ledger and was true and correct as of
the close of business of the Servicer on the Cut-Off
Date [(and) any applicable Subsequent Transfer
Date)]; and the Cut-Off Date Principal Balance of
the Receivable has been accurately and correctly
calculated.
(iii) Compliance with Laws. To the
knowledge of the Seller, the Receivable, and the
sale of the related Financed Vehicle, complied at
the time it was originated or made, and will comply
as of the Closing Date, in all material respects
with all requirements of applicable federal, state,
and local laws, and regulations thereunder, includ-
ing, to the extent applicable, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, Federal Reserve Board Regulations B
and Z, and any other consumer credit, equal opportu-
nity, and disclosure laws; provided, however, that
if, notwithstanding the knowledge of the Seller, any
Receivable, or the sale of the related Financed
Vehicle, fails to comply with applicable law in the
manner and to the extent set forth herein, the
Seller shall repurchase such Receivable in accor-
dance with the terms and conditions set forth in
Section 2.4, but such failure to comply with such
laws shall not constitute a breach of this warranty
except for purposes of Section 2.4.
(iv) Binding Obligation. The Receivable
constitutes the genuine, legal, valid, and binding
payment obligation in writing of the Obligor, en-
forceable in all material respects by the holder
thereof in accordance with its terms, except as such
enforceability may be limited by applicable bank-
ruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other
similar laws affecting creditors' rights in general.
(v) No Government Obligor. The Obligor
on the Receivable is not the United States of Ameri-
ca or any state thereof or any local government, or
any agency, department, political subdivision or
instrumentality of the United States of America or
any state thereof or any local government.
(vi) Receivables in Force. The Receiv-
able has not been satisfied, subordinated, or re-
scinded and the Financed Vehicle has not been re-
leased from the lien granted by the Receivable in
whole or in part.
(vii) No Amendment or Waiver. No materi-
al provision of the Receivable has been amended,
waived, altered or modified in any respect, except
pursuant to a document, instrument or writing in-
cluded in the Receivable File or reflected in the
Electronic Ledger, and no such amendment, waiver,
alteration or modification causes such Receivable
not to conform to the other warranties contained in
this Section.
(viii) No Defenses. The Receivable is
not subject to any right of rescission, setoff,
counterclaim or defense, including the defense of
usury, and the operation of any of the terms of the
Receivable, or the exercise of any right thereunder,
will not render the Receivable unenforceable in
whole or in part or subject to any right of rescis-
sion, setoff, counterclaim or defense, including the
defense of usury, and the Seller has not received
written notice of the assertion of any such right of
rescission, setoff, counterclaim or defense asserted
with respect thereto.
(ix) No Liens. The Seller has not re-
ceived notice of any liens or claims, including
liens for work, labor, materials or unpaid state or
federal taxes relating to the Financed Vehicle, that
are or may be liens prior to, or equal to or coordi-
nate with, the lien granted by the Receivable.
(x) No Default. Except for payment
delinquencies continuing for a period of not more
than thirty (30) days as of the Cut-Off Date [(or
any applicable subsequent Transfer Date)], to the
knowledge of the Seller (a) no default, breach,
violation, or event permitting acceleration under
the terms of any Receivable exists; and (b) no
continuing condition that with notice or lapse of
time, or both, would constitute a default, breach,
violation, or event permitting acceleration under
the terms of any Receivable has arisen; and the
Seller has not waived any of the foregoing; provid-
ed, however, that if, notwithstanding the knowledge
of the Seller, any of the events specified in (a) or
(b) above exists or has arisen with respect to a
Receivable, the Seller shall repurchase such Receiv-
able in accordance with the terms and conditions of
Section 2.4, with the existence of such events not
constituting a breach of this warranty, except for
purposes of Section 2.4.
(xi) Insurance. The Financed Vehicle
securing such Receivable is required by the Receiv-
able to be insured under an Insurance Policy.
(xii) Good Title. Immediately prior to
the assignment herein contemplated, the Receivable
had not been sold, assigned, pledged or otherwise
conveyed by the Seller to any Person other than the
Trust, and the Seller had good and marketable title
to the Receivable free and clear of any encumbrance,
equity, lien, pledge, charge, claim, security inter-
est or other right or interest of any other Person,
was the sole owner thereof and had full right and
power to transfer and assign the Receivable to the
Trust. Immediately upon the transfer and assignment
of the Receivable to the Trust, the Trust shall have
good and marketable title to the Receivable, free
and clear of any encumbrance, equity, lien, pledge,
charge, claim, security interest or other right or
interest of any other Person; and all filings and
actions required by the Relevant UCC with respect to
the transfer to the Trust of Receivables associated
with the sale of the same have been accomplished for
the purpose of complying with the Relevant UCC
provisions governing the relative priority of inter-
ests of parties in the Receivables.
(xiii) Lawful Assignment. The Receivable
has not been originated in, and is not subject to
the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable hereun-
der or pursuant to transfers of the Certificates are
unlawful, void, or voidable.
(xiv) All Filings Made. All filings have
been made, including filings under the Relevant UCC,
which are necessary in any jurisdiction to cause the
ownership and title interests of the Trust in the
Receivables to be afforded priority over competing
claims of the holders of security interests or other
claims against whom such filings can assure priori-
ty.
(xv) Valid Security Interest. On the
Closing Date, there will exist a valid, subsisting
and enforceable first priority perfected security
interest in the Financed Vehicle securing the Re-
ceivable (subject to administrative delays and
clerical errors on the part of the applicable gov-
ernment agency and to any statutory or other lien
arising by operation of law after the Closing Date
which is prior to such security interest). With
respect to the foregoing, each Seller hereby cove-
nants to take all action necessary such that, at
such time as enforcement of such security interest
is sought, there shall exist a valid, subsisting and
enforceable first priority perfected security inter-
est in the Financed Vehicle for the benefit of the
Trust (subject to administrative delays and clerical
errors on the part of the applicable government
agency and any statutory or other lien arising by
operation of law after the Closing Date which is
prior to such interest).
(xvi) Capacity of Parties. To the knowl-
edge of the Seller, all parties to the Receivable
had capacity to execute the Receivable; provided,
however, that if, notwithstanding the knowledge of
the Seller, all parties to any Receivable did not
have the capacity to execute such Receivable, the
Seller shall repurchase such Receivable in accor-
dance with the terms and conditions of Section 2.4,
with the existence of such lack of capacity not
constituting a breach of this warranty, except for
purposes of Section 2.4.
(xvii) One Original. Only one original
of each Receivable was executed.
(xviii) Obligations; No Impairment. The
Seller has duly fulfilled all obligations on its
part to be fulfilled under, or in connection with,
the Receivable and has done nothing to impair the
rights of the Trust, the [Class A] Certificatehold-
ers [or the Class B Certificateholders] in the
Receivable or the proceeds thereof.
(xix) No Fraud or Misrepresentation. To
the knowledge of the Seller, the Receivable was
originated by a Dealer and sold by such Dealer to
the Seller without any conduct constituting fraud or
misrepresentation against the Obligor on the part of
such Dealer; provided, however, that if, notwith-
standing the knowledge of the Seller, any Receivable
was originated and sold under conduct constituting
fraud or misrepresentation against the Obligor on
the part of such Dealer, the Seller shall repurchase
such Receivable in accordance with the terms and
conditions of Section 2.4, with the existence of
such conduct not constituting a breach of this
warranty, except for purposes of Section 2.4.
(xx) Possession. Immediately prior to
the Closing Date, the Seller (or an Affiliate) will
have possession of the Receivable File, and there
are and there will be no custodial agreements in
effect materially adversely affecting the right or
ability of the Seller to make, or cause to be made,
any delivery required hereunder.
(xxi) Bulk Transfer Laws. The transfer,
assignment and conveyance of the Receivable and
Receivable Files by the Seller pursuant to this
Agreement is not subject to the bulk transfer or any
similar statutory provisions in effect in any appli-
cable jurisdiction.
SECTION 2.3. Warranties as to the Receivables
in the Aggregate and Actions of the Sellers. The Sellers
hereby make the following warranties jointly and several-
ly as to the Receivables conveyed by them to the Trust
hereunder to the Trustee and the Certificateholders.
Unless otherwise indicated, such warranties shall speak
as of the Closing Date, but shall survive the sale,
transfer, and assignment of the Receivables and the other
Trust Property to the Trust.
(i) Amounts. The aggregate Cut-Off Date
Principal Balances of the Receivables are equal to
the Initial Pool Balance.
(ii) Individual Characteristics. The
Receivables have the following individual character-
istics as of the close of business of the Servicer
on the Cut-Off Date: (a) the obligations of the
Obligors on the Receivables are secured by security
interests in new or used automobiles, vans or light-
duty trucks; (b) each Receivable has a Contract Rate
of at least ___% and not more than ___%; (c) each
Receivable had a remaining maturity of not less than
[12] months and not more than __ months; (d) each
Receivable had a Cut-Off Date Principal Balance of
not less than $_____ and not more than $_____; (e)
no Receivable was more than thirty (30) days delin-
quent as of the Cut-Off Date; (f) no Financed Vehi-
cle had been repossessed as of the Cut-Off Date; (g)
No Receivable is a Defaulted Receivable; (h) each
Receivable is a retail motor vehicle installment
sales contract; (i) each Receivable provides for
allocation of payments between principal and inter-
est by the Simple Interest Method; and (j) each
Receivable is not related to a Motor Vehicle that is
the subject of forced-placed insurance. The Receiv-
ables were selected utilizing selection procedures
that were not adverse to the Certificateholders.
(iii) Aggregate Characteristics. The
Receivables had the following characteristics in the
aggregate as of the Cut-Off Date: (a) approximately
__% of the Initial Pool Balance was attributable to
loans for purchases of new Financed Vehicles, and
approximately __% of the Initial Pool Balance was
attributable to loans for purchases of used Financed
Vehicles; (b) the weighted average Contract Rate of
the Receivables was approximately ____%; (c) there
were _____ Receivables; (d) the average Cut-Off Date
Principal Balance was approximately $_____; and (e)
the weighted average original term and weighted
average remaining term of the Receivables were
approximately _____ months and _____ months, respec-
tively.
(iv) Computer Tape. The Computer Tapes
were complete and accurate as of the Cut-Off Date
and include a description of the same Receivables
that are described in the Schedule of Receivables.
(v) Marking Records. By the Closing
Date, the Sellers will have caused the portions of
the Electronic Ledger relating to the Receivables to
be clearly and unambiguously marked to show that
such Receivables constitute part of the Trust Prop-
erty and are owned by the Trust in accordance with
the terms of the trust created hereunder.
(vi) No Assignment. As of the Closing
Date, none of the Sellers shall have taken any
action to convey any right to any Person that would
result in such Person having a right to payments
received under the Insurance Policies, the Dealer
Agreements the Dealer Assignments or payments due
under the Receivables that is senior to, or equal
with, that of the Trust.
SECTION 2.4. Repurchase upon Breach. Each of
the Sellers, the Servicer and the Trustee, as the case
may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach or failure to
be true of the warranties (including in the case of
Sections 2.2(iii), (x), (xvi) and (xix) any breach or
failure which would have occurred if such warranty had
not been made to the knowledge of the Sellers) made by
the Sellers pursuant to Section 2.2 or Section 2.3.
Unless the breach or failure shall have been cured by the
last day of the Collection Period which includes the 60th
day after the date on which a Seller becomes aware of, or
receives written notice from the Trustee or the Servicer
of, such breach or failure, the affected Seller shall
repurchase from the Trustee any Receivable the interests
of the Trust and the Certificateholders in which is
materially and adversely affected by the breach or fail-
ure, on the Deposit Date immediately following such
Collection Period; provided, however, that if such breach
or failure occurs solely as a result of NationsBank,
N.A.'s practice of retaining original Motor Vehicle loan
documents only in microfilm form, NationsBank, N.A. shall
not be required to repurchase any such Receivables unless
the Dealer with respect to such Receivable becomes the
subject of any bankruptcy, insolvency or similar proceed-
ings and the trustee in bankruptcy, conservator, receiver
or other similar official or a creditor of such Dealer
asserts that NationsBank, N.A. did not have, or the Trust
does not have, a first priority perfected ownership
interest in such Receivable as a result of such practice.
Any breach of a representation relating to the status of
a Receivable as a Simple Interest Receivable or the
Contract Rate of a Receivable shall be deemed to materi-
ally and adversely affect the Certificateholders. In
consideration of the purchase of a Receivable hereunder,
the related Seller shall remit the Purchase Amount of
such Receivable, no later than the close of business (New
York time) on the applicable Deposit Date, in the manner
specified in Section 4.3. Except as provided in Section
7.2, the sole remedy of the Trust, the Trustee, or the
Certificateholders with respect to a breach or failure to
be true of the warranties made by a Seller pursuant to
Section 2.2 or Section 2.3 shall be to require such
Seller to repurchase any Receivables subject to such
breach pursuant to this Section 2.4.
SECTION 2.5. Custody of Receivable Files. To
assure uniform quality in servicing the Receivables and
to reduce administrative costs, the Trustee, upon the
execution and delivery of this Agreement, revocably
appoints the Servicer and the Servicer accepts such
appointment, it being understood that the Servicer shall
appoint its Affiliate NSI, on behalf of the Servicer, as
agent, to act as custodian on behalf of the Trustee of
the following documents or instruments, which are hereby
constructively delivered to the Trustee with respect to
each Receivable (collectively, a "Receivable File"):
(i) the original of the Receivable in all cases
in which an original exists;
(ii) any documents evidencing the existence of
any Insurance Policies;
(iii) copies of the original credit applica-
tion;
(iv) either (x) the original certificate of
title, or such other documents as the Seller shall
keep on file, in accordance with its customary
procedures, evidencing the security interest of the
Seller in the Financed Vehicle or the efforts (in-
cluding the proof of application for notice of lien
or other evidence of such security interest) made by
the Seller to perfect such security interest; or (y)
with respect to jurisdictions in which the certifi-
cate of title or other evidence of ownership is not
issued to the holder of a lien, evidence of the
Seller's security interest in the Financed Vehicle
(or the efforts made by the Seller to perfect such
security interest (including the proof of applica-
tion for notice of lien or other evidence of such
security interest)), in each case issued by the
appropriate governmental agency of the state in
which such Financed Vehicle is registered;
(v) electronic entries or originals or true
copies of all documents, instruments or writings
relating to extensions, amendments or waivers of the
Receivable; and
(vi) any and all other documents or electronic
records that the Seller or Servicer, as the case may
be, shall keep on file, in accordance with its
customary procedures, relating to the Receivable,
the Obligor or the Financed Vehicle.
SECTION 2.6. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as
custodian, shall hold, or cause its Affiliate NSI to
hold, the Receivable Files on behalf of the Trustee for
the benefit of all present and future Certificateholders,
and maintain such accurate and complete accounts, re-
cords, and computer systems pertaining to each Receivable
as shall enable the Servicer and the Trustee to comply
with the terms and provisions of this Agreement applica-
ble to it. In performing its duties as custodian hereun-
der, the Servicer and its Affiliate NSI shall act with
reasonable care, exercising the degree of skill and care
that the Servicer and NSI exercises with respect to
similar motor vehicle receivables owned and/or serviced
by it and that is consistent with industry standards.
The Servicer shall implement and maintain written poli-
cies and procedures with respect to the handling and
custody of the Receivable Files, so that the integrity
and physical possession of the Receivable Files shall be
maintained, and, in general, shall attend to all details
in connection with maintaining custody of the Receivable
Files as agent of the Trustee, for the benefit of the
Trust and the Certificateholders. The Servicer shall
also maintain a current inventory of the Receivables and
conduct, or cause to be conducted, periodic audits (to
the extent required by Section 3.11) of the Receivable
Files held by it (or its Affiliates) under this Agreement
and the related accounts, records, and computer systems,
and shall otherwise maintain (or cause to be maintained)
the Receivable Files in such a manner as shall enable the
Trustee to verify, if the Trustee so elects, the accuracy
of the record keeping of the Servicer (or its Affili-
ates); provided, however, nothing in this Agreement shall
be construed to require the Trustee to verify the accura-
cy of the record keeping of the Servicer. The Servicer
shall promptly report to the Trustee any failure to hold
the Receivable Files and maintain the accounts, records,
and computer systems as herein provided, and the Servicer
shall promptly take appropriate action to remedy any such
failure.
(b) Maintenance of and Access to Records. The
Servicer shall maintain (or cause to be maintained) each
Receivable File at the location specified in Schedule B
to this Agreement, or at such other office of the
Servicer or an Affiliate within the states of North
Carolina or Texas (or, in the case of any successor
Servicer, within the state in which its principal place
of business is located) as shall be specified to the
Trustee by thirty (30) days' prior written notice. The
Servicer shall make available to the Trustee or its
Authorized Officers (or, when requested in writing by the
Trustee, to its attorneys or auditors) and to Certifi-
cateholders (for legitimate business purposes relating to
the Trust) the Receivable Files and the related accounts,
records, and computer systems maintained by the Servicer
at such times during the normal business hours of the
Servicer as the Trustee shall reasonably instruct.
(c) Release of Documents. Upon written in-
structions from the Trustee, the Servicer shall release
(or cause to be released) any document in the Receivable
Files to the Trustee, the Trustee's agent, or the
Trustee's designee, as the case may be, at such place or
places as the Trustee may designate, as soon thereafter
as is practicable. Any document so released shall be
handled by the Trustee with due care and returned to the
Servicer for safekeeping as soon as the Trustee or its
agent or designee, as the case may be, shall have no
further need therefor.
(d) Title to Receivables. The Servicer agrees
that, in respect of any Receivable held by it as custodi-
an hereunder, the Servicer will not at any time have or
in any way attempt to assert any interest in such Receiv-
able (other than its interest in the Supplemental Servic-
ing Fee) or the related Receivable File, other than
solely for the purpose of collecting or enforcing the
Receivable for the benefit of the Trust and that the
entire equitable interest in such Receivable and the
related Receivable File shall at all times be vested in
the Trust.
SECTION 2.7. Instructions; Authority to Act.
The Servicer shall be deemed to have received proper
instructions with respect to the Receivable Files upon
its receipt of written instructions signed by an Autho-
rized Officer of the Trustee. A certified copy of ex-
cerpts of By-Laws or certain resolutions of the Board of
Directors of the Trustee shall constitute conclusive
evidence of the authority of any such Authorized Officer
to act and shall be considered in full force and effect
until receipt by such Servicer of written notice to the
contrary given by the Trustee.
SECTION 2.8. Custodian's Indemnification. The
Servicer, in its capacity as custodian, shall indemnify
and hold harmless the Trustee, its officers, directors,
employees and agents and the Certificateholders from and
against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (in-
cluding legal fees if any) of any kind whatsoever that
may be imposed on, incurred, or asserted against the
Trustee or the Certificateholders as the result of any
act or omission relating to the maintenance and custody
of the Receivable Files; provided, however, that the
Servicer shall not be liable hereunder to the extent, but
only to the extent, that such liabilities, obligations,
losses, compensatory damages, payments, costs or expenses
result from the willful misfeasance, bad faith, or negli-
gence of the Trustee.
SECTION 2.9. Effective Period and Termination.
The Servicer's appointment as custodian shall become
effective as of the Cut-Off Date and shall continue in
full force and effect until terminated pursuant to this
Section 2.9. If the Servicer resigns as a Servicer under
Section 8.5, or if all of the rights and obligations of a
Servicer shall have been terminated under Section 9.1,
the appointment of the Servicer as custodian hereunder
may and shall at the direction of the Holders of Certifi-
cates evidencing not less than a majority of the aggre-
gate outstanding principal balance of the [Class A]
Certificates [and the Class B Certificates] taken togeth-
er as a single class (the "Majority Holders"), be termi-
nated by the Trustee in the same manner as the Trustee or
such Holders may terminate the rights and obligations of
the Servicer under Section 9.1. The Trustee, at the
direction of the Majority Holders, may terminate the
Servicer's appointment as a custodian hereunder at any
time with cause, or with thirty (30) days' prior notice
without cause, upon written notification to the Servicer.
As soon as practicable after any termination of such
appointment the Servicer, at the Servicer's expense,
shall deliver or cause to be delivered, the Receivable
Files to the Trustee, the Trustee's agent or the
Trustee's designee at such place or places as the Trustee
may reasonably designate. Notwithstanding any termina-
tion of the Servicer as custodian hereunder (other than
in connection with a termination resulting from the
termination of the Servicer, as such, pursuant to Section
9.1), the Trustee agrees that, from and after the date of
such termination, and for so long as the Servicer is
acting as Servicer pursuant to this Agreement, the Trust-
ee shall provide, or cause the successor custodian to
provide, reasonable and customary access to the Receiv-
able Files to the Servicer, at such times as the Servicer
shall request, for the purpose of carrying out its duties
and responsibilities with respect to the servicing of the
Receivables hereunder and upon the Servicer providing to
the Trustee a request for release in such form as may be
agreed to between the Servicer and the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
SECTION 3.1. Duties of Servicer. (a) The
Servicer, acting alone and/or through subservicers as
provided in this Section 3.1, shall administer the Re-
ceivables serviced by it with reasonable care. The
Servicer's duties shall include, but not be limited to,
the collection and posting of all payments, responding to
inquiries by Obligors on the Receivables, or by federal,
state, or local governmental authorities, investigating
delinquencies, furnishing monthly and annual statements
to the Trustee with respect to distributions and provid-
ing collection and repossession services in the event of
Obligor default. The Servicer shall also administer and
enforce all rights and responsibilities of the holder of
the Receivables provided for in the Dealer Agreements and
the Insurance Policies, to the extent that such Dealer
Agreements and Insurance Policies relate to the Receiv-
ables, the Financed Vehicles or the Obligors. In per-
forming its duties as Servicer hereunder, the Servicer
will exercise that degree of skill and care that the
Servicer exercises with respect to similar motor vehicle
receivables owned and/or serviced by the Servicer and
that is consistent with prudent industry standards.
Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Trust-
ee to execute and deliver, on behalf of itself, the
Trust, the Trustee, and the Certificateholders, any and
all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables
or to the Financed Vehicles, all in accordance with this
Agreement; provided, however, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction or as other-
wise required by law, release an Obligor from payment of
any unpaid amount under any Receivable or waive the right
to collect the unpaid balance (including accrued inter-
est) of any Receivable from the Obligor, except in con-
nection with a de minimis deficiency which the Servicer
would not attempt to collect in accordance with its
customary procedures. If the Servicer shall commence a
legal proceeding to enforce a Receivable, the Trustee
shall thereupon be deemed to have automatically assigned
such Receivable to the Servicer, which assignment shall
be solely for purposes of collection. The Trustee shall
execute and deliver to the Servicer any powers of attor-
ney and other documents or instruments prepared by and at
the expense of the Servicer which are necessary or appro-
priate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
From time to time during the term of this
Agreement, the Servicer may enter into agreements with
one or more Affiliates for the servicing and administra-
tion of certain of the Receivables; provided, however,
that any such subservicer shall be and shall remain, for
so long as it is acting as subservicer, an Eligible
Servicer, and any fees paid to such subservicer shall be
paid by the Servicer and not out of the proceeds of the
Trust, and any such subservicer shall agree to service
the Receivables in a manner consistent with the terms of
this Agreement.
(b) References in this Agreement to actions
taken, to be taken, permitted to be taken, or restric-
tions on actions permitted to be taken by the Servicer in
servicing the Receivables and other actions taken, to be
taken, permitted to be taken, or restrictions on actions
to be taken with respect to the Trust Property shall
include actions taken, to be taken, permitted to be
taken, or restrictions on actions permitted to be taken
by a subservicer on behalf of a Servicer and references
herein to payments or Recoveries received by a Servicer
shall include payments or Recoveries received by a
subservicer, irrespective of whether such payments or
Recoveries are actually deposited in the Certificate
Account by such subservicer.
(c) The Servicer shall be entitled to termi-
nate any subservicing agreement in accordance with the
terms and conditions of such subservicing agreement and
without any limitation by virtue of this Agreement;
provided, however, that, in the event of termination of
any subservicing agreement by the Servicer, the Servicer
shall either act directly as servicer of the related
Receivable or enter into a subservicing agreement with a
successor subservicer which will be bound by the terms of
the related subservicing agreement.
(d) As a condition to the appointment of any
subservicer other than an Affiliate of a Seller, the
Servicer shall notify the Trustee and the Rating Agencies
in writing before such assignment becomes effective and
such subservicer shall be required to execute and deliver
an instrument in which it agrees that, for so long as it
acts as subservicer of the Receivables and the other
Trust Property being serviced by it, the covenants,
conditions, indemnities, duties, obligations and other
terms and provisions of this Agreement applicable to the
Servicer hereunder shall be applicable to it as
subservicer, that it shall be required to perform its
obligations as subservicer for the benefit of the Trust
as if it were Servicer hereunder (subject, however, to
the right of the Servicer to direct the performance of
such obligations in accordance with this Agreement) and
that, notwithstanding any provision of a subservicing
agreement to the contrary, such subservicer shall be
directly liable to the Trustee and the Trust (notwith-
standing any failure by the Servicer to perform its
duties and obligations hereunder) for the failure by such
subservicer to perform its obligations hereunder or under
any subservicing agreement, and that (notwithstanding any
failure by a Servicer to perform its respective duties
and obligations hereunder) the Trustee may enforce the
provisions of this Agreement and any subservicing agree-
ment against the subservicer for the benefit of the Trust
and the Certificateholders, without diminution of such
obligations or liabilities by virtue of any subservicing
agreement, by virtue of any indemnification provided
thereunder or by virtue of the fact that the Servicer is
primarily responsible hereunder for the performance of
such duties and obligations, as if a subservicer alone
were servicing and administering, under this Agreement,
the Receivables and the other Trust Property being ser-
viced by it under the subservicing agreement. Any such
subservicer shall agree that it has no rights (including
but not limited to, rights to compensation and indemnity)
against the Trust.
(e) Notwithstanding any subservicing agree-
ment, any of the provisions of this Agreement relating to
agreements or arrangements between a Servicer or a
subservicer or reference to actions taken through such
Persons or otherwise, the Servicer shall remain obligated
and liable to the Trust, the Trustee and the Certificate-
holders for the servicing and administering of the Re-
ceivables and the other Trust Property serviced by it in
accordance with the provisions of this Agreement (includ-
ing for the deposit of payments and Recoveries received
by a subservicer, irrespective of whether such payments
or Recoveries are actually remitted to the Servicer or
deposited in the Certificate Account by such subservicer;
provided, however, that if such amounts are so deposited,
the Servicer shall have no further obligation to do so)
without diminution of such obligation or liability by
virtue of such subservicing agreements or arrangements or
by virtue of indemnification from a subservicer, to the
same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the
Receivables and the other Trust Property. The Servicer
shall be entitled to enter into any agreement with a
subservicer for indemnification, and nothing contained in
this Agreement shall be deemed to limit or modify such
indemnification.
(f) In the event the Servicer shall for any
reason no longer be acting as such (including by reason
of the occurrence of any of the Events of Servicing
Termination), the successor Servicer may, in its discre-
tion, thereupon assume all of the rights and obligations
of the outgoing Servicer under a subservicing agreement.
In such event, the successor Servicer shall be deemed to
have assumed all of the Servicer's interest therein and
to have replaced the outgoing Servicer as a party to such
subservicing agreement to the same extent as if such
subservicing agreement had been assigned to the successor
Servicer, except that the outgoing Servicer shall not
thereby be relieved of any liability or obligation on the
part of the outgoing Servicer to the subservicer under
such subservicing agreement. The outgoing Servicer
shall, upon request of the Trustee, but at the expense of
the outgoing Servicer, deliver to the successor Servicer
all documents and records relating to each such
subservicing agreement and the Receivables and the other
Trust Property then being serviced thereunder and an
accounting of amounts collected and held by it and other-
wise use its commercially reasonable efforts to effect
the orderly and efficient transfer of the subservicing
agreement to the successor Servicer. In the event that
the successor Servicer elects not to assume a
subservicing agreement, the outgoing Servicer, at its
expense (and not at the expense of the Trust), shall
terminate such subservicing agreement and shall cause the
subservicer to deliver to the successor Servicer all
documents and records relating to the Receivables and the
other Trust Property being serviced thereunder and all
amounts held (or thereafter received) by such subservicer
(together with an accounting of such amounts) and shall
otherwise use its commercially reasonable efforts to
effect the orderly and efficient transfer of servicing of
the Receivables and the other Trust Property being ser-
viced by such subservicer to the successor Servicer. The
relationship of the Servicer (and of any successor to the
Servicer as servicers under this Agreement) to the Trust-
ee under this Agreement is intended by the parties to be
that of independent contractors and not that of joint
venturers, partners or agents of the Trustee.
SECTION 3.2. Collection of Receivable Pay-
ments; Credit Deferrals. (a) The Servicer shall make
reasonable efforts to collect all payments called for
under the terms and provisions of the Receivables as and
when the same shall become due, and otherwise act with
respect to the Receivables, the Dealer Agreements, the
Insurance Policies and the other Trust Property in such
manner as will, in the reasonable judgment of the
Servicer, maximize the amount to be received by the Trust
with respect thereto, in accordance with the standard of
care required by Section 3.1. Other than as explicitly
permitted in Section 3.2(b) below, the Servicer will not
increase or decrease the number or amount of any Sched-
uled Payment, or the Amount Financed under a Receivable
or the Contract Rate of a Receivable, or extend, rewrite
or otherwise modify the payment terms of a Receivable,
release collateral securing a Receivable, or otherwise
modify, waive, or consent to any change in any material
term of a Receivable.
(b) Notwithstanding the foregoing, the
Servicer may grant to an Obligor one or more payment
deferrals of all or a portion of a Scheduled Payment
(each, a "Credit Deferral") if (i) the Servicer deter-
mines that, absent such deferral, a payment default by
the Obligor is reasonably foreseeable; (ii) the Servicer
would grant such Credit Deferral if the Receivable were
serviced by it for its own account and in accordance with
its customary standards; (iii) the cumulative extensions
with respect to any Receivable (A) shall not cause the
term of such Receivable to extend beyond the last day of
the Collection Period immediately preceding the Final
Scheduled Distribution Date and (B) shall not exceed 50%
of the original term of any Receivable; and (iv) interest
continues to accrue on the outstanding principal balance
of the Receivable during the term of such Credit Defer-
ral. In the event that the Servicer fails to comply with
the provisions of the preceding sentence, the Servicer
shall be required to purchase the Receivable or Receiv-
ables affected thereby, for the Purchase Amount, in the
manner specified in Section 3.7 as of the close of the
Collection Period in which such failure occurs.
SECTION 3.3. Realization upon Receivables. On
behalf of the Trust, the Servicer shall charge off a
Receivable as a Defaulted Receivable no later than 120
days from a first date of delinquency (unless such delin-
quency shall have subsequently been cured in accordance
with the Servicer's customary servicing practices);
provided, however, that in the event of (a) a bankruptcy
filing under federal law; (b) a bankruptcy or similar
filing under state law; and/or (c) the repossession and
sale of a Financed Vehicle, the Servicer shall charge off
a Receivable as a Defaulted Receivable no later than 210
days from the first date of delinquency; and provided,
further, that the Servicer shall use its best efforts to
repossess and liquidate the Financed Vehicle securing any
Receivable as soon as it determines that a Receivable is
uncollectible in accordance with the Servicer's customary
servicing practices, subject to and in accordance with
the standard of care required by Section 3.1. In taking
any such actions, the Servicer shall follow such custom-
ary and usual practices and procedures as it shall deem
necessary or advisable in its servicing of motor vehicle
receivables, and as are otherwise consistent with the
standard of care required under Section 3.1, which shall
include the exercise of any rights of recourse to Dealers
under the Dealer Agreements (or rights to compel repur-
chase against third Persons) and selling the Financed
Vehicle at public or private sale. The Servicer shall be
entitled to recover all reasonable expenses incurred by
it in the course of repossessing and liquidating a Fi-
nanced Vehicle into cash proceeds, but only out of the
cash proceeds of such Financed Vehicle, any deficiency
obtained from the Obligor or any amounts received from
the related Dealer. The foregoing shall be subject to
the provision that, in any case in which a Financed
Vehicle shall have suffered damage, the Servicer shall
not expend funds in connection with the repair or the
repossession of such Financed Vehicle unless it shall
determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds of
the related Receivable by an amount equal to or greater
than the amount of such expenses (which, in any event,
shall not be unreasonable).
If, in any enforcement suit or legal proceed-
ing, it is held that a Seller or the Servicer, as the
case may be, may not enforce any Receivable on the ground
that it shall not be a real party in interest or a Person
entitled to enforce the Receivable, the Trustee shall, at
the expense of such Seller or the Servicer, as the case
may be, take such steps as such Seller or the Servicer,
as the case may be, deems necessary to enforce the Re-
ceivable, including bringing suit in the Trustee's name
or the names of the Certificateholders.
If the Servicer elects to commence a legal
proceeding to enforce a Dealer Agreement, the act of
commencement shall be deemed to be an automatic assign-
ment from the Trustee to the Servicer of the rights of
the Trust under such Dealer Agreement. If, however, in
any enforcement suit or legal proceeding, it is held that
the Servicer may not enforce the Trust's rights under a
Dealer Agreement on the grounds that it is not a real
party in interest or a Person entitled to enforce the
Dealer Agreement, the Trustee, at the Servicer's expense,
or the applicable Seller, at such Seller's expense, shall
take such steps as the Servicer deems necessary to en-
force the Dealer Agreement, including bringing suit in
its name or the names of the Certificateholders.
SECTION 3.4. Physical Damage Insurance. The
Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent for
the Trust. If the Servicer elects to commence a legal
proceeding to enforce an Insurance Policy, the act of
commencement shall be deemed to be an automatic assign-
ment of the rights of the Trust under such Insurance
Policy to the Servicer for purposes of collection only.
If, however, in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce an Insurance
Policy on the grounds that it is not a real party in
interest or a holder entitled to enforce the Insurance
Policy, the Trustee, on behalf of the Trust, at the
Servicer's expense, or the related Seller, at the
Servicer's expense, shall take such steps as the Servicer
deems necessary to enforce such Insurance Policy, includ-
ing bringing suit in its name and/or the names of the
Certificateholders.
SECTION 3.5. Maintenance of Security Interests
in Financed Vehicles. The Servicer, in accordance with
the standard of care required under Section 3.1, shall
take such steps as are necessary to maintain perfection
of the security interest created by each Receivable in
the related Financed Vehicle for the benefit of the
Trust. The Trustee, on behalf of the Trust, hereby
authorizes the Servicer, and the Servicer hereby agrees,
to take such steps as are necessary to re-perfect such
security interest on behalf of the Trust. If there has
been an Event of Servicing Termination (or the occurrence
of an event specified in clause (iii) or (iv) of Section
9.1(a) with respect to a Seller), the Servicer, at its
expense, shall promptly and duly execute and deliver such
documents and instruments, and take such other actions as
may be necessary, as evidenced by an Opinion of Counsel
delivered to the Trustee, to perfect the Trust's interest
in the Trust Property against all other Persons, includ-
ing the delivery of the Receivables and the Receivable
Files to the Trustee, its agent, or its designee, the
endorsement and delivery of the Insurance Policies or the
notification of the insurers thereunder, the execution of
transfer instruments, and the endorsement to the Trustee
and the delivery of the certificates of title to the
Financed Vehicles to the appropriate department or de-
partments of motor vehicles (or other appropriate govern-
mental agency).
SECTION 3.6. Covenants of the Servicer. The
Servicer makes the following covenants to the Trustee and
the Certificateholders:
(i) Security Interest to Remain in Force. The
Financed Vehicle securing each Receivable will not
be released from the security interest granted by
the Receivable in whole or in part, except as con-
templated herein.
(ii) No Impairment. The Servicer will not
(nor will it permit any subservicer to) impair in
any material respect the rights of the Certificate-
holders in the Receivables, the Dealer Agreements or
the Insurance Policies or, subject to clause (iii)
below, otherwise amend or alter the terms thereof
if, as a result of such amendment or alteration, the
interests of the Trust and the Certificateholders
hereunder would be materially adversely affected.
(iii) Amendments. The Servicer will not
increase or decrease the number or amount of Sched-
uled Payments or the Amount Financed under a Receiv-
able, or extend, rewrite or otherwise waive, amend,
or modify any material term of a Receivable, except
in accordance with the restrictions set forth in
Section 3.2.
SECTION 3.7. Purchases by Servicer upon
Breach. Each Seller, the Servicer and the Trustee, as
the case may be, shall inform the other parties promptly,
in writing, upon the discovery of any breach by the
Servicer of its covenants under Section 3.6. Unless the
breach shall have been cured by the last day of the
Collection Period which includes the 60th day after the
date on which the Servicer becomes aware of, or receives
written notice of, such breach, the Servicer shall pur-
chase the Receivable or Receivables materially adversely
affected thereby on the immediately succeeding Deposit
Date; provided, however, that in the case of a breach of
the covenant contained in Section 3.6(iii), the Servicer
shall be obligated to purchase the affected Receivable or
Receivables on the Deposit Date immediately succeeding
the Collection Period during which the Servicer becomes
aware of, or receives written notice of, such breach
(which in all cases shall be deemed to have a material
adverse effect on the Certificateholders). In consider-
ation of the purchase of a Receivable hereunder, the
Servicer shall remit the Purchase Amount of such Receiv-
able in the manner specified in Section 4.3. Except as
provided in Section 8.2, the sole remedy of the Trust,
the Trustee, or the Certificateholders against the
Servicer with respect to a breach pursuant to Section 3.6
shall be to require the Servicer to repurchase Receiv-
ables pursuant to this Section 3.7.
SECTION 3.8. Servicing Compensation. On each
Distribution Date, the Servicer shall be paid its Servic-
ing Fee for such Distribution Date and any unpaid Servic-
ing Fees from prior Distribution Dates to the extent of
funds available therefor in accordance with the provi-
sions of Section 4.5. The Servicing Fee in respect of a
Collection Period (together with any portion of a Servic-
ing Fee that remains unpaid from prior Distribution
Dates) may, at the option of the Servicer, be paid at or
as soon as possible after the beginning of such Collec-
tion Period out of the first collections received on the
Receivables during such Collection Period. In addition,
notwithstanding any other provision of this Agreement,
the Servicer shall (i) retain any late fees or other fees
and charges collected on Receivables during a Collection
Period and (ii) be paid any interest earned during a
Collection Period on deposits in the Accounts of Collec-
tions on the Receivables (collectively, the "Supplemental
Servicing Fee"). The Servicer shall be required to pay
all expenses incurred by it in connection with its activ-
ities hereunder (including fees and expenses of the
Trustee and its counsel (and any custodian appointed by
the Trustee) and independent accountants, any
subservicer, taxes imposed on the Servicer or any
subservicer, and expenses incurred in connection with
distributions and reports to Certificateholders) except
expenses incurred in connection with realizing upon
Receivables under Section 3.3. No transfer, sale, pledge
or other disposition of the Servicer's right to receive
all or any portion of the Servicing Fee or Supplemental
Servicing Fee shall be made, and any such attempted
transfer, sale, pledge or other disposition shall be
void, unless such transfer is made to one or more succes-
sor Servicers in connection with the assumption by any
such successor Servicer of the duties hereunder pursuant
to Section 9.2 and all (and not a portion) of the Servic-
ing Fee and Supplemental Servicing Fee is transferred to
any such successor Servicer.
SECTION 3.9. Servicer's Report. On or before
the Determination Date immediately preceding each Distri-
bution Date, the Servicer shall deliver to the Trustee a
certificate of a Servicing Officer substantially in the
form of Exhibit C hereto (each, a "Servicer's Certifi-
cate") containing all information necessary to make the
distributions pursuant to Section 4.5, and all informa-
tion necessary for the Trustee to send statements to
Certificateholders pursuant to Section 4.7.
SECTION 3.10. Annual Statement as to Compli-
ance. (a) The Servicer shall deliver to the Trustee, on
or before [January 31] of each year, commencing [January
31, 1997], an Officer's Certificate, stating that (i) a
review of the activities of the Servicer during the
preceding calendar year (or shorter period, in the case
of the first such Officer's Certificate) and of its
performance of its obligations under this Agreement has
been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such
review, the Servicer has, or has caused to be, fully
performed its obligations under this Agreement throughout
such year (or shorter period, in the case of the first
such certificate), or, if there has been a material
default in the performance of any such obligation, speci-
fying each such default known to such officer and the
nature and status thereof.
(b) The Servicer shall deliver to the Trustee,
promptly upon having knowledge thereof, but in no event
later than five (5) Business Days thereafter, written
notice in an Officer's Certificate of any event which
constitutes or, with the giving of notice or lapse of
time, or both, would become, an Event of Servicing Termi-
nation under Section 9.1.
SECTION 3.11. Independent Certified Public
Accountants' Reports. The Servicer shall cause a firm of
independent certified public accountants (who may also
render other services to the Servicer and the Sellers) to
deliver to the Trustee on or before [August 31] of each
year commencing [August 31, 1996], a report to the effect
that such firm has conducted an examination, substantial-
ly in compliance with attestation standards established
by the American Institute of Certified Public Accoun-
tants, of certain documents and records relating to the
servicing procedures under this Agreement and that, on
the basis of such examination, such firm is of the opin-
ion that such servicing was conducted in compliance with
the sections of this Agreement with which independent
public accountants generally possess adequate profession-
al knowledge and which are reasonably subject to positive
assurance by them, except for such exception as they
believe to be immaterial and such other exceptions as
shall be set forth in such report.
SECTION 3.12. Access to Certain Documentation
and Information Regarding Receivables. The Servicer
shall provide the Trustee and the Certificateholders with
access to the Receivable Files (in the case of the Cer-
tificateholders, only where the Certificateholder shall
be required by applicable statutes or regulations to have
access to such documentation). Such access shall be
afforded without charge, but only upon reasonable request
and during normal business hours at an office of the
Servicer reasonably designated by the Servicer. Nothing
in this Section 3.12 shall affect the obligation of the
Servicer to observe any applicable law prohibiting dis-
closure of information regarding the Obligors, and the
failure of a Servicer to provide access to information as
a result of such obligation shall not constitute a breach
of this Section. Any Certificateholder, by its accep-
tance of a Certificate, shall be deemed to have agreed to
keep any information obtained by it pursuant to this
Section confidential, except as may be required by appli-
cable law.
SECTION 3.13. Reports to the Commission. The
Servicer shall, on behalf of the Trust, cause to be filed
with the Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission thereunder.
SECTION 3.14. Reports to the Rating Agencies.
The Servicer shall deliver to each Rating Agency, at such
address as each Rating Agency may request, a copy of all
reports or notices furnished or delivered pursuant to
this Article and a copy of any amendments, supplements or
modifications to this Agreement and, if any subservicer
is not an Affiliate of the Seller, any subservicing
agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.1. Establishment of Accounts.
(a) (i) The Trustee, on behalf of the Trust and for the
benefit of the Certificateholders, shall establish and
maintain in the name of the Trustee one or more Eligible
Deposit Accounts (the "Certificate Account"), entitled
Certificate Account, as trustee for the benefit
of the Certificateholders of the NationsBank Auto Grantor
Trust 199 - . The Trustee, on behalf of the Trust and
for the benefit of the [Class A] Certificateholders,
shall establish and maintain in the name of the Trustee
an Eligible Deposit Account (the "[Class A] Distribution
Account"), entitled [Class A] Distribution Account,
as trustee, for the benefit of the [Class A] Certifi-
cateholders of the NationsBank Auto Grantor Trust 199 - .
[The Trustee, on behalf of the Trust and for the benefit
of the Class B Certificateholders, shall establish and
maintain in the name of the Trustee an Eligible Deposit
Account (the "Class B Distribution Account"), entitled
Class B Distribution Account, as trustee for the
benefit of the Class B Certificateholders of the
NationsBank Auto Grantor Trust 199 - .]
(ii) Funds on deposit in the Accounts shall be
invested by the Trustee in Permitted Investments selected
by the Servicer; provided, however, it is understood and
agreed that neither the Trustee nor the Trust shall be
liable for any loss or charge arising from such invest-
ment in Permitted Investments but any such loss or charge
shall be paid by the Servicer. All such Permitted In-
vestments shall be held by the Trustee for the benefit of
the beneficiaries of the applicable Account; provided,
however, that on each Distribution Date, all interest and
other investment income (net of losses and investment
expenses) on funds on deposit therein shall be withdrawn
from the Accounts at the direction of the Servicer and
paid to the Servicer. Funds on deposit in the Accounts
with respect to any Collection Period shall be invested
in Permitted Investments that will mature so that all
funds (including both principal and interest) will be
available at the close of business on the Deposit Date
following such Collection Period. Funds deposited in an
Account on a Deposit Date which immediately precedes a
Distribution Date upon the maturity of any Permitted
Investments are not required to be (but may be) invested
overnight.
(iii) The Trustee shall possess all right,
title and interest in all funds on deposit from time to
time in the Accounts, and all such funds shall be part of
the Trust Property. The Accounts shall be under the sole
dominion and control of the Trustee. If, at any time,
any of the Accounts ceases to be an Eligible Deposit
Account, the Trustee (or the Servicer on its behalf)
shall within ten (10) Business Days (or such longer
period, not to exceed thirty (30) calendar days, as to
which each Rating Agency shall consent) establish a new
Account as an Eligible Deposit Account and shall transfer
any cash and/or any investments that are in the existing
Account which is no longer an Eligible Deposit Account to
such new Account.
(iv) With respect to the Account Property in
respect of any Account, the Trustee agrees that:
(A) any Account Property that is held in
deposit accounts shall be held solely in an Eligible
Deposit Account; and each such Eligible Deposit
Account shall be subject to the exclusive custody
and control of the Trustee, and the Trustee shall
have sole signature authority with respect thereto;
(B) any Account Property that constitutes
Physical Property shall be held, pending maturity or
disposition, solely by the Trustee or a financial
intermediary (as such term is defined in Section 8-
313(4) of the Relevant UCC) acting solely for the
Trustee;
(C) any Account Property that is a book-
entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations
shall be maintained by the Trustee, pending maturity
or disposition, through continued book-entry regis-
tration of such Account Property as described in
paragraph (b) of the definition of "Delivery"; and
(D) any Account Property that is an
"uncertificated security" under Article 8 of the
Relevant UCC and that is not governed by clause (C)
above shall be maintained by the Trustee, pending
maturity or disposition, through continued registra-
tion of the Trustee's (or its nominee's) ownership
of such security.
(v) The Servicer shall have the power, revoca-
ble by the Trustee, to instruct the Trustee to make
withdrawals and payments from the Accounts for the pur-
pose of permitting the Servicer to carry out its duties
hereunder or permitting the Trustee to carry out its
duties.
[(b) (i) The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the
name of , as Collateral Agent, an Eligible Deposit
Account (the "Reserve Account"), which account shall be
entitled Reserve Account, as trustee for the
benefit of Certificateholders of the NationsBank Auto
Grantor Trust 199 - and shall clearly indicate that such
account has been pledged to the Collateral Agent for the
benefit of the Certificateholders. The Reserve Account
shall not be property of the Trust.
[(ii) Funds on deposit in the Reserve Account
shall be invested by the Collateral Agent in Permitted
Investments selected by the Servicer; provided, however,
it is understood and agreed that the Collateral Agent
shall not be liable for any loss or charge arising from
such investment in Permitted Investments. All such
Permitted Investments shall be held by the Collateral
Agent for the benefit of the Certificateholders; provid-
ed, however, that on each Distribution Date all interest
and other investment income (net of losses and investment
expenses) on funds on deposit therein shall be withdrawn
from the Reserve Account at the direction of the Servicer
and paid to the Servicer on behalf of the Sellers. Funds
on deposit in the Reserve Account shall be invested in
Permitted Investments that will mature so that all funds
(including both principal and interest) will be available
at the opening of business on the next following Deposit
Date; provided, however, that subject to satisfaction of
the Rating Agency Condition and notice thereof to the
Trustee and the Collateral Agent, all or a portion of
such funds on deposit in the Reserve Account may be
invested in Permitted Investments that mature later than
such next following Deposit Date.
[(iii) The Reserve Account shall be under the
sole dominion and control of the Collateral Agent. If,
at any time, the Reserve Account ceases to be an Eligible
Deposit Account, the Servicer shall within ten (10)
Business Days (or such longer period, not to exceed
thirty (30) calendar days, as to which each Rating Agency
may consent, notice of which consent shall be furnished
to the Trustee and Collateral Agent) establish a new
Reserve Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments that are in the
existing Account which is no longer an Eligible Deposit
Account to such new Reserve Account.
[(iv) With respect to the Account Property in
respect of the Reserve Account, the Collateral Agent
agrees that:
(A) any Account Property that is held in
deposit accounts shall be held solely in an Eligible
Deposit Account; and each such Eligible Deposit
Account shall be subject to the exclusive custody
and control of the Collateral Agent, and the Collat-
eral Agent shall have sole signature authority with
respect thereto;
(B) any Account Property that constitutes
Physical Property shall be held, pending maturity or
disposition, solely by the Collateral Agent or a
financial intermediary (as such term is defined in
Section 8-313(4) of the Relevant UCC) acting solely
for the benefit of the Certificateholders;
(C) any Account Property that is a book-
entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations
shall be maintained by the Collateral Agent, pending
maturity or disposition, through continued book-
entry registration of such Account Property as
described in such paragraph (b) of the definition of
Delivery; and
(D) any Account Property that is an
"uncertificated security" under Article 8 of the
Relevant UCC and that is not governed by clause (C)
above shall be maintained by the Collateral Agent,
pending maturity or disposition, through continued
registration of the Collateral Agent's (or its
nominee's) ownership of such security.
[(v) The Servicer shall have the power, revo-
cable by the Collateral Agent, to instruct the Collateral
Agent to make withdrawals and payments from the Reserve
Account for the purpose of permitting the Servicer to
carry out its duties hereunder.
[(vi) Each of the Sellers (and any successor
to a Seller in accordance with Section 7.3) and the
Servicer agree to take or cause to be taken such further
actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and
instruments (including, without limitation, any financing
statements under the Relevant UCC or this Agreement) as
may be determined to be necessary, in order to perfect
the interests created by this Section 4.1(b) and other-
wise effectuate the purposes, terms and conditions of
this Section 4.1(b).]
SECTION 4.2. Collections. (a) Subject to
subsections (b) and (c) below and Section 3.8, the
Servicer shall remit to the Certificate Account all
payments by or on behalf of the Obligors on the Receiv-
ables, including all Liquidation Proceeds and Recoveries
received by the Servicer during any Collection Period, as
soon as practicable, but in no event after the close of
business on the second Business Day after receipt there-
of.
(b) Notwithstanding the provisions of Section
4.2(a), if (i) the Servicer shall have the Required
Rating or (ii) (A) the Servicer shall have obtained a
letter of credit or surety bond (or other form of perfor-
mance guaranty) in favor of the Trustee, on behalf of the
Trust and the Certificateholders, providing that the
Trustee may demand payment (up to the amount then avail-
able thereunder) in the event that the Servicer fails to
make any payment or deposit required hereunder and (B)
the Rating Agency Condition shall be satisfied, the
Servicer may deposit the amounts referred to in subsec-
tion (a) above into the Certificate Account not later
than the Deposit Date immediately succeeding the last day
of the related Collection Period, for so long as the
Servicer shall have the Required Rating or such letter of
credit, surety bond or other form of performance guaranty
is in full force and effect, as the case may be; provid-
ed, however, that (i) if an Event of Servicing Termina-
tion has occurred and is continuing, (ii) the Servicer
has been terminated as such pursuant to Section 9.1 or
(iii) the Servicer ceases to have the Required Rating
(and the Servicer has not obtained a letter of credit,
surety bond or other form of performance guaranty satis-
fying the conditions specified above), the Servicer shall
deposit such amounts (including any amounts then being
held by the Servicer) into the Certificate Account as
provided in Section 4.2(a). Notwithstanding the forego-
ing, the provisions of the proviso to the preceding
sentence shall not be applicable to a successor Servicer
solely by reason of the occurrence of an event specified
in clauses (i), (ii) and (iii) of such proviso with
respect to the outgoing Servicer. Following the occur-
rence of an event specified in clauses (i), (ii) or (iii)
of the proviso to the second preceding sentence, on a
monthly basis, all Collections, Liquidation Proceeds and
Recoveries shall be segregated by book-entry or other
form of identification on the Servicer's books and re-
cords and identified as the property of the Trust. The
Servicer shall promptly notify the Trustee in writing if
it shall obtain or lose the Required Rating or the bene-
fit of such letter of credit, surety bond or other form
of performance guaranty.
(c) Notwithstanding the provisions of subsec-
tions (a) and (b) hereof, the Servicer may retain, or
will be entitled to be reimbursed, from amounts otherwise
payable into, or on deposit in, the Certificate Account
with respect to a Collection Period any amounts previous-
ly deposited in the Certificate Account but later deter-
mined to have resulted from mistaken deposits or postings
or checks returned for insufficient funds, in each case,
with respect to which the Servicer has not been previous-
ly reimbursed hereunder. The amount to be retained or
reimbursed hereunder shall not be included in Collections
with respect to the related Distribution Date.
(d) In those cases where a subservicer is
servicing a Receivable, the Servicer shall cause the
subservicer to remit to the Certificate Account as soon
as practicable, but in no event later than the close of
business on the second Business Day after receipt thereof
by the subservicer (but subject to the [provisions of
Section 4.2(b) applied with respect to such subservicer
and the] limitations contained in Section 4.2(c) of this
Agreement) the amounts referred to in Section 4.2(a) in
respect of a Receivable being serviced by the
subservicer.
SECTION 4.3. Advances; Other Deposits. (a)
On each Deposit Date, the Servicer shall make a payment
with respect to each Receivable (other than a Defaulted
Receivable) equal to the excess, if any, of (i) the
amount of interest due on such Receivable at its applica-
ble Contract Rate as of its Due Date, assuming the pay-
ment thereon was made on such Due Date (or as of the date
that would have been its Due Date had the Obligor not
paid such Receivable ahead by more than one month) over
(ii) Interest Collections actually received by the
Servicer as of the last day of such Collection Period
with respect to such Receivable (each such payment, an
"Advance"). If the amount specified in clause (ii) above
with respect to a Receivable exceeds the amount specified
in clause (i) above with respect to such Receivable, such
excess amount shall be remitted to the Servicer to reim-
burse the Servicer for previously unreimbursed Advances
with respect to such Receivable; provided, however, that
the Servicer shall not be entitled to reimbursement for
an Advance resulting from a payment being made by or on
behalf of the Obligor prior to the Due Date under the
Receivable (a "Simple Interest Advance"). In addition,
in the Event that a Receivable becomes a Defaulted Re-
ceivable, Outstanding Advances of accrued unpaid interest
thereon shall be reimbursed to the extent of Interest
Collections with respect to such Receivable and, if such
amounts are insufficient, from amounts on deposit in the
Reserve Account. The Servicer shall not be required to
make an Advance (other than a Simple Interest Advance) to
the extent that the Servicer, in its sole discretion,
determines that such Advance would not subsequently be
recovered (whether from Interest Collections on such
Receivables (including Liquidation Proceeds) or the
Reserve Account). The Servicer shall not make any ad-
vance with respect to principal of Receivables.
(b) The Servicer shall deposit in the Certifi-
cate Account the aggregate Advances on the Receivables
pursuant to Section 4.3(a). To the extent that the
Servicer fails to make an Advance pursuant to Section
4.3(a) on the date required, the Servicer shall so notify
the Trustee in writing specifying the amount of the
Advance and the Receivable to which such Advance relates,
and the Trustee shall withdraw such amount (or, if deter-
minable, such portion of such amount as does not repre-
sent advances for delinquent interest) from the Reserve
Account and deposit such amount in the Certificate Ac-
count.
(c) The Servicer and the Sellers shall deposit
or cause to be deposited in the Certificate Account the
aggregate Purchase Amount with respect to Purchased
Receivables. All such deposits shall be made, in immedi-
ately available funds, no later than the applicable
Deposit Date.
SECTION 4.4. Net Deposits. The Servicer may
make the remittances to be made by it pursuant to Section
4.2 net of amounts to be distributed to it pursuant to
Section 4.5 (but subject to the priorities set forth
therein), for so long as (i) no Event of Servicing Termi-
nation has occurred and is continuing and (ii) the
Servicer has not been terminated as such pursuant to
Section 9.1 hereof; provided, however, that the Servicer
shall account for all of such amounts in the related
Servicer's Certificate as if such amounts were deposited
and distributed separately; and provided further that, if
an error is made by the Servicer in calculating the
amount to be deposited or retained by it and a shortfall
in the amount deposited in the Certificate Account re-
sults, the Servicer shall make a payment of the deficien-
cy to the Certificate Account, immediately upon becoming
aware, or receiving notice from the Trustee, of such
error.
SECTION 4.5. Distributions. (a) On or before
each Determination Date, the Servicer shall calculate all
amounts to be deposited in the [Class A] Distribution
Account [and the Class B Distribution Account], which
calculations shall be set forth in the Servicer's Certif-
icate delivered to the Trustee on or before such Determi-
nation Date.
(b) On each Distribution Date, after making
the reimbursements to the Servicer of Outstanding Advanc-
es pursuant to Section 4.3(a), the Trustee shall make the
following deposits and distributions from the Certificate
Account [and the Reserve Account], if necessary, based
solely on the information contained in the Servicer's
Certificate, to the extent of amounts available from the
indicated sources, in the following priority:
(i) to the Servicer, [first] from Avail-
able Interest, [and then, if necessary, from the
Available Reserve Amount,] any unpaid Servicing Fee
owing to such Servicer for the related Collection
Period and all unpaid Basic Servicing Fees from
prior Collection Periods;
(ii) to the [Class A] Distribution Ac-
count, [first] from Available Interest, [then, if
necessary, from the Available Reserve Amount, and
finally, if necessary, from the Class B Percentage
of Available Principal,] the [Class A] Interest
Distribution for such Distribution Date; and
(iii) to the [Class B] Distribution
Account, [first] from Available Interest, [and then,
if necessary, from the Available Reserve Amount,]
the [Class B] Interest Distribution for such Distri-
bution Date based solely on the information con-
tained in the Servicer's Certificate.
On each Distribution Date, the Trustee shall make the
following deposits and distributions (based on the infor-
mation contained in the Servicer's Certificate), to the
extent of the portion of Available Principal, Available
Interest [and the Available Reserve Amount] (to be ap-
plied in that order of priority) remaining after the
application of clauses (i), (ii) and (iii) above, in the
following priority:
(iv) to the [Class A] Distribution Ac-
count, the [Class A] Principal Distribution for such
Distribution Date;
[(v) to the Class B Distribution Account,
the Class B Principal Distribution for such Distri-
bution Date];
[(vi) to the Collateral Agent for deposit
in the Reserve Account, any amounts remaining, until
the amount on deposit in the Reserve Account equals
the Specified Reserve Account Balance]; and
(vii) to the Servicer for distribution to
the Sellers.
(c) On each Distribution Date, all amounts on
deposit in the [Class A] Distribution Account will be
distributed to the [Class A] Certificateholders by the
Trustee [and all amounts on deposit in the Class B Dis-
tribution Account will be distributed to the Class B
Certificateholders by the Trustee]. Except as provided
in Section 11.1, payments under this paragraph shall be
made to the Certificateholders by check mailed by the
Trustee to each Holder's respective address of record
(or, in the case of Certificates registered in the name
of a Clearing Agency, or its nominee, by wire transfer of
immediately available funds). To the extent that the
Trustee is required to wire funds to the Certificatehold-
ers from the [Class A] Distribution Account [or the Class
B Distribution Account, as applicable], it shall request
the bank maintaining the [Class A] Distribution Account
[or the Class B Distribution Account, as applicable,] to
make a wire transfer of the amount to be distributed and
the bank maintaining the [Class A] Distribution Account
[or the Class B Distribution Account, as applicable,]
shall promptly deliver to the Trustee a confirmation of
such wire transfer. To the extent that the Trustee is
required to make payments to Certificateholders by check
hereunder, it shall request the bank maintaining the
[Class A] Distribution Account [or the Class B Distribu-
tion Account, as applicable,] to provide it with a supply
of checks to make such payments. The bank shall, if a
request is made by the Trustee for a wire transfer by
9:00 A.M. (New York time) on any Distribution Date, wire
such funds in accordance with such instructions by 10:00
A.M. (New York time) on such Distribution Date, and it
will otherwise act in compliance with the provisions of
this paragraph and the other provisions of this Agreement
applicable to it as the bank maintaining the [Class A]
Distribution Account [or the Class B Distribution Ac-
count, as applicable]. The Servicer shall take all
necessary action (including requiring an agreement to
such effect) to ensure that any bank maintaining the
[Class A] Distribution Account [or the Class B Distribu-
tion Account, as applicable,] agrees to comply, and
complies, with the provisions of this paragraph and the
other provisions of this Agreement applicable to it as
the bank maintaining the [Class A] Distribution Account
[or the Class B Distribution Account, as applicable].
[SECTION 4.6. Reserve Account. On the Closing
Date, the Sellers shall deposit the Reserve Account
Initial Deposit into the Reserve Account. The Sellers
hereby grant to the Collateral Agent for the benefit of
the Certificateholders a security interest in and to the
Reserve Account and any and all property credited thereto
from time to time, including, but not limited to, Permit-
ted Investments, to secure payment of the Certificates
according to their terms. Amounts held from time to time
in the Reserve Account will continue to be held by the
Collateral Agent for the benefit of [Class A] Certifi-
cateholders [and the Class B Certificateholders], but the
Reserve Account shall not be an asset of the Trust. By
acceptance of their Certificates or interest therein,
Certificateholders and Certificate Owners shall be deemed
to have appointed as Collateral Agent.
hereby accepts such appointment as Collateral Agent.
SECTION 4.7. Statements to Certificateholders.
(a) On each Determination Date, the Servicer shall
provide to the Trustee (with a copy to the Rating Agen-
cies) for the Trustee to forward to each Certificatehold-
er of record a statement substantially in the form of
Exhibit C setting forth at least the following informa-
tion as to the Certificates to the extent applicable:
(i) the amount of the distribution allo-
cable to principal on the [Class A] Certificates
[and the Class B Certificates];
(ii) the amount of the distribution
allocable to interest on the [Class A] Certificates
[and the Class B Certificates];
(iii) the amount of the distribution
allocable to draws from the Reserve Account (if
any), or payments in respect of any other credit or
cash flow enhancement arrangement;
(iv) the amount of the Basic Servicing
Fee paid to the Servicer with respect to the related
Collection Period;
(v) the Class A Certificate Balance, the
Class A Pool Factor, the Class B Certificate Balance
and the Class B Pool Factor as of such Distribution
Date, after giving effect to payments allocated to
principal reported pursuant to clause (i) above;
(vi) the Pool Balance as of the close of
business of the Servicer on the last day of the
preceding Collection Period;
(vii) the amount of the aggregate Real-
ized Losses, if any, for such Collection Period;
(viii) the Certificateholders' interest
carryover shortfall and the Certificateholder's Principal
carryover shortfall, if any, [in each case separately
stated with respect to both the Class A Certificatehold-
ers and the Class B Certificateholders,] after giving
effect to the changes in such amounts since the proceed-
ing Determination Date;]
(ix) the aggregate Purchase Amount of
Receivables repurchased by the Sellers or purchased
by the Servicer;
(x) the balance of the Reserve Account on
such Distribution Date, after giving effect to
changes therein on such Distribution Date; and
(xi) the Specified Reserve Account Bal-
ance as of the close of business on such Distribu-
tion Date.
Each amount set forth pursuant to clauses (i), (ii) and
(iv) above shall be expressed in the aggregate and as a
dollar amount per $1,000 of original denomination of a
Certificate.
Within a reasonable period of time after the
end of each calendar year, but not later than the latest
date permitted by law, the Servicer shall furnish a
report to the Trust and the Trustee shall furnish, or
cause to be furnished, to each Person who at any time
during such calendar year shall have been a Certificate-
holder, a statement based upon such report as to the sum
of the amounts determined in clauses (i) and (ii) above
for such calendar year, or, in the event such Person
shall have been a Certificateholder during a portion of
such calendar year, for the applicable portion of such
year, and such other information as is available to the
Servicer as the Servicer deems necessary or desirable to
enable the Certificateholders to prepare their federal
income tax returns.
The Trustee shall provide copies of the state-
ments and reports specified above in the this Section
4.7, as well as copies of the Servicer's Certificates,
annual statements and accountant's reports delivered
pursuant to Sections 3.9, 3.10 and 3.11, to any Certifi-
cate Owner requesting such information in writing; pro-
vided, however, that the Trustee may require any such
Certificate Owner to pay for the costs of copying and
mailing (or otherwise delivering) such information.
ARTICLE V
[Reserved]
ARTICLE VI
THE CERTIFICATES
SECTION 6.1. The Certificates. The Trustee
shall, upon written order or request signed in the name
of the Sellers by one of each Seller's officers autho-
rized to do so and delivered to an Authorized Officer of
the Trustee, execute on behalf of the Trust, authenticate
and deliver the Certificates to or upon the order of the
Sellers in the aggregate principal amount and denomina-
tions as set forth in such written order or request. The
Certificates shall be issuable in denominations of $1,000
and integral multiples thereof; provided, however, that
one [Class A] Certificate [and one Class B Certificate]
may be issued in a denomination that represents the
residual amount of the Initial [Class A] Certificate
Balance [and the Initial Class B Certificate Balance,
respectively]. Upon initial issuance, the [Class A]
Certificates [and the Class B Certificates] shall be in
the form of Exhibit A [and Exhibit B, respectively],
which [are][is] incorporated by reference herein, and
shall be issued as provided in Section 6.8, in an aggre-
gate amount equal to the Initial [Class A] Certificate
Balance [and the Initial Class B Certificate Balance,
respectively]. The Certificates shall be executed by the
Trustee on behalf of the Trust by manual or facsimile
signature of an Authorized Officer of the Trustee under
the Trustee's seal imprinted thereon and attested by the
manual or facsimile signature of an Authorized Officer of
the Trustee. Certificates bearing the manual or facsimi-
le signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on
behalf of the Trust, shall be valid and binding obliga-
tions of the Trust, notwithstanding that such individuals
shall have ceased to be so authorized prior to the au-
thentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
SECTION 6.2. Authentication of Certificates.
No Certificate shall entitle the Holder thereof 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 the form of Certificate[s] attached hereto
as Exhibit A [and Exhibit B], executed by the Trustee by
manual signature. Such authentication shall constitute
conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of
their authentication.
SECTION 6.3. Registration of Transfer and
Exchange of Certificates. The Trustee shall maintain, or
cause to be maintained, at the office or agency to be
maintained by it in accordance with Section 6.7, a Cer-
tificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall pro-
vide for the registration of Certificates and of trans-
fers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any [Class
A] Certificate [or Class B Certificate] at such office or
agency, the Trustee shall execute, authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new [Class A] Certificates [or
Class B Certificates, as the case may be,] in authorized
denominations of a like aggregate amount. At the option
of a Certificateholder, [Class A] Certificates [or Class
B Certificates] may be exchanged for other [Class A]
Certificates [or Class B Certificates, as the case may
be,] of authorized denominations of a like aggregate
amount at the office or agency maintained by the Trustee
in accordance with Section 6.7. Every Certificate pre-
sented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of
transfer duly executed by the Holder and in form and
substance satisfactory to the Trustee. No service charge
shall be made for any registration of transfer or ex-
change of Certificates, but the Trustee 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. All Certificates
surrendered for registration of transfer or exchange
shall be cancelled and disposed of in a commercially
reasonable manner approved by the Trustee.
[The Class B Certificates are subject to re-
strictions on transfer to (a) an employee benefit plan
(as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title 1 of ERISA, (b) a plan described
in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan").
Such restrictions on transfer are set forth in the form
of Class B Certificate attached hereto as Exhibit B.]
SECTION 6.4. Mutilated, Destroyed, Lost or
Stolen Certificates. If (a) any mutilated [Class A]
Certificate [or Class B Certificate] shall be surrendered
to the Trustee, or if the Trustee shall receive evidence
to its satisfaction of the destruction, loss, or theft of
any [Class A] Certificate [or Class B Certificate] and
(b) there shall be delivered to the Trustee such security
or indemnity as may be required to save it harmless, then
in the absence of notice that such [Class A] Certificate
[or Class B Certificate] shall have been acquired by a
bona fide purchaser, the Trustee shall execute, authenti-
cate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen [Class A] Certifi-
cate [or Class B Certificate], a new [Class A] Certifi-
cate [or Class B Certificate] of like tenor and denomina-
tion. In connection with the issuance of any new Certif-
icate under this Section 6.4, the Trustee may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
herewith. Any replacement Certificate issued pursuant to
this Section 6.4 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 6.5. Persons Deemed Owners. Prior to
due presentation of a Certificate for registration of
transfer, the Trustee may treat the Person in whose name
any Certificate shall be registered as the owner of such
Certificate for the purpose of receiving distributions
pursuant to Section 4.5 and for all other purposes, and
the Trustee shall not be bound by any notice to the
contrary.
SECTION 6.6. Access to List of
Certificateholders' Names and Addresses. The Trustee
shall furnish or cause to be furnished to the Servicer,
within fifteen (15) days after receipt by the Trustee of
a request therefor from the Servicer in writing, in such
form as the Servicer may reasonably require, a list of
the names and addresses of the Certificateholders as of
the most recent Record Date. If Definitive Certificates
have been issued, the Trustee, upon written request of
the holders of [Class A] Certificates [or Class B Certif-
icates] evidencing not less than 25% of the aggregate
outstanding principal balance of either the [Class A]
Certificates [or the Class B Certificates, as the case
may be,] will, within five (5) Business Days after the
receipt of such request, afford such [Class A] Certifi-
cateholders [or Class B Certificateholders] access during
normal business hours to the most current list of Certif-
icateholders for purposes of communicating with other
Certificateholders with respect to their rights under the
Agreement. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed to
hold neither the Sellers, the Servicer nor the Trustee
accountable by reason of the disclosure of its name and
address, regardless of the source from which such infor-
mation was derived.
SECTION 6.7. Maintenance of Office or Agency.
The Trustee shall maintain, or cause to be maintained, at
its expense, in New York, New York, an office or agency
where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Certificates and this
Agreement may be served. The Trustee initially desig-
nates the as its office for such pur-
poses. The Trustee shall give prompt written notice to
the Servicer and to Certificateholders of any change in
the location of any such office or agency.
SECTION 6.8. Book-Entry Certificates. Upon
original issuance, the [Class A] Certificates [and the
Class B Certificates], other than the [Class A] Certifi-
cate [and the Class B Certificate] representing the
residual amount of the Initial [Class A] Certificate
Balance [and the Initial Class B Certificate Balance,
respectively,] which shall be issued upon the written
order of the Sellers, shall be issued in the form of one
or more typewritten Certificates representing the Book-
Entry Certificates, to be delivered to the initial Clear-
ing Agency, by, or on behalf of, the Sellers. Such
Certificates shall initially be registered on the Certif-
icate 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
Certificate Owner's interest in the [Class A] Certifi-
cates [or the Class B Certificates, as the case may be,]
except as provided in Section 6.10. Unless and until
definitive, fully registered Certificates (collectively,
"Definitive Certificates") have been issued to [Class A]
Certificateholders [or Class B Certificateholders, as the
case may be], pursuant to Section 6.10:
(i) the provisions of this Section 6.8
shall be in full force and effect;
(ii) the Sellers, the Servicer and the
Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on
the Certificates and the taking of actions by the
Certificateholders) as the authorized representative
of the Certificate Owners;
(iii) to the extent that the provisions
of this Section 6.8 conflict with any other provi-
sions of this Agreement, the provisions of this
Section 6.8 shall control;
(iv) the rights of Certificate Owners
shall be exercised only through the Clearing Agency
and shall be limited to those established by law,
the rules, regulations and procedures of the Clear-
ing Agency and agreements between such Certificate
Owners and the Clearing Agency and all references in
this Agreement to actions by Certificateholders
shall refer to actions taken by the Clearing Agency
upon instructions from the Clearing Agency Partici-
pants, and all references in this Agreement to
distributions, notices, reports and statements to
Certificateholders shall refer to distributions,
notices, reports and statements to the Clearing
Agency or its nominee, as registered holder of the
Certificates, as the case may be, for distribution
to Certificate Owners in accordance with the rules,
regulations and procedures of the Clearing Agency;
and
(v) pursuant to the Depository Agreement,
the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and
interest on the Certificates to the Clearing Agency
Participants, for distribution by such Clearing
Agency Participants to the Certificate Owners or
their nominees.
For purposes of any provision of this Agreement
requiring or permitting actions with the consent of, or
at the direction of, Holders of Certificates evidencing
specified percentages of the aggregate outstanding prin-
cipal balance of such Certificates, such direction or
consent may be given by Certificate Owners having inter-
ests in the requisite percentage, acting through the
Clearing Agency.
SECTION 6.9. Notices to Clearing Agency.
Whenever 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 6.10, the Trustee
shall give all such notices and communications specified
herein to be given to Certificateholders to the Clearing
Agency.
SECTION 6.10. Definitive Certificates. If (i)
(A) the Sellers advise the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge
properly its responsibilities under the Depository Agree-
ment and (B) the Trustee or the Sellers are unable to
locate a qualified successor, (ii) the Sellers, at their
option, advise the Trustee in writing that they elect to
terminate the book-entry system through the Clearing
Agency or (iii) after the occurrence of an Event of
Servicing Termination, with respect to the [Class A]
Certificates, [Class A] Certificate Owners representing
in the aggregate not less than a majority of the aggre-
gate outstanding principal balance of the [Class A]
Certificates [or, with respect to the Class B Certifi-
cates, Class B Certificate Owners representing in the
aggregate not less than a majority of the aggregate
outstanding principal balance of the Class B Certifi-
cates,] advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing, and
the Clearing Agency shall so notify the Trustee, that the
continuation of a book-entry system through the Clearing
Agency, is no longer in the [Class A] Certificate Owners'
[or the Class B Certificate Owners', as the case may be,]
best interests, the Trustee shall notify the Clearing
Agency, which shall be responsible to notify the [Class
A] Certificate Owners [or the Class B Certificate Owners
or both, as the case may be,] of the occurrence of any
such event and of the availability of Definitive Certifi-
cates to [Class A] Certificate Owners [or Class B Certif-
icate Owners or both, as the case may be,] requesting the
same. Upon surrender to the Trustee by the Clearing
Agency of the [Class A] Certificates [or the Class B
Certificates or both, as the case may be,] registered in
the name of the nominee of the Clearing Agency, accompa-
nied by re-registration instructions from the Clearing
Agency for registration, the Trustee shall execute, on
behalf of the Trust, authenticate and deliver Definitive
Certificates in accordance with such instructions. The
Sellers shall arrange for, and will bear all costs of,
the printing and issuance of such Definitive Certifi-
cates. Neither the Sellers, the Servicer nor the 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 Trustee shall
recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
ARTICLE VII
THE SELLERS
SECTION 7.1. Representations and Warranties of
the Sellers. Each Seller makes the following representa-
tions and warranties to the Trustee and the Certificate-
holders. Such representations and warranties are made as
of the execution and delivery of this Agreement, but
shall survive the sale, transfer and assignment of the
Receivables and the other Trust Property to the Trust.
(i) Organization and Good Standing. The
Seller has been duly organized and is validly exist-
ing as a national banking association, with the
power and authority to own its properties and to
conduct its business as such properties are present-
ly owned and such business is presently conducted
and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell
its Receivables.
(ii) Due Qualification. The Seller has
obtained all necessary licenses and approvals, in
all jurisdictions where the failure to do so would
materially and adversely affect the ownership or
servicing of its Receivables or render any of its
Receivables unenforceable.
(iii) Power and Authority. The Seller
has the power, authority and legal right to execute
and deliver this Agreement and to carry out its
terms and to sell and assign the property to be sold
and assigned to and deposited with the Trustee as
Trust Property; and the execution, delivery, and
performance of this Agreement and all of the docu-
ments required pursuant hereto have been duly autho-
rized by the Seller by all necessary corporate
action.
(iv) No Consent Required. The Seller is
not required to obtain the consent of any other
Person, or any consent, license, approval or autho-
rization or registration or declaration with, any
governmental authority, bureau or agency in connec-
tion with the execution, delivery or performance of
this Agreement, other than as may be required under
the blue sky or securities laws of any state or the
Securities Act of 1933, as amended, or under state
laws governing the perfection of the interests
created under this Agreement.
(v) Valid Sale; Binding Obligation. This
Agreement effects a valid sale, transfer, and as-
signment of the Receivables and the other Trust
Property conveyed by the Seller to the Trust hereun-
der, enforceable against creditors of and purchasers
from the Seller; and this Agreement constitutes a
legal, valid, and binding obligation of the Seller,
enforceable against the Seller in accordance with
its terms, subject, as to enforceability, to appli-
cable bankruptcy, insolvency, reorganization, mora-
torium, conservatorship, receivership, liquidation
and other similar laws affecting the enforcement of
creditors' rights in general and except as such
enforceability may be limited by general principles
of equity (whether considered in a suit at law or in
equity).
(vi) No Violation. The execution, deliv-
ery and performance by the Seller of this Agreement
and the consummation of the transactions contemplat-
ed hereby and the fulfillment of the terms hereof
will 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) a default under,
the articles of association or bylaws of the Seller,
or conflict with, or breach any of the terms or
provisions of, or constitute (with or without notice
or lapse of time) a default under, any material
indenture, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or
by which the Seller is bound or any of its proper-
ties are subject, or result in the creation or
imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agree-
ment, mortgage, deed of trust or other instrument
(other than this Agreement), or violate any law,
order, rule, or regulation, applicable to the Seller
or its properties, of any federal or state regulato-
ry body, any court, administrative agency, or other
governmental instrumentality having jurisdiction
over the Seller or any of its properties.
(vii) No Proceedings. There are no
proceedings or investigations pending, or, to the
knowledge of the Seller, threatened, before any
court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality
having jurisdiction over the Seller or its proper-
ties: (a) asserting the invalidity of this Agree-
ment or the Certificates, (b) seeking to prevent the
issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agree-
ment, (c) seeking any determination or ruling that
might materially and adversely affect the perfor-
mance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement or the
Certificates, or (d) that may adversely affect the
federal or state income, excise, franchise or simi-
lar tax attributes of the Certificates.
SECTION 7.2. Liability of Sellers; Indemni-
ties. (a) The Sellers shall be jointly and severally
liable in accordance herewith only to the extent of the
obligations specifically undertaken hereunder and shall
have no other obligations or liabilities hereunder.
(b) The Sellers shall jointly and severally
indemnify, defend and hold harmless the Trustee, the
Trust and the Certificateholders from and against any
taxes that may at any time be asserted against the Trust-
ee, its directors, officers, employees and agents, the
Trust or a Certificateholder with respect to, and as of
the date of, the sale, transfer and assignment of the
Trust Property to the Trust or the issuance and original
sale of the Certificates, including any sales, gross
receipts, general corporation, tangible or intangible
personal property, privilege, or license taxes (but not
including any taxes asserted with respect to ownership of
the Trust Property or federal or other income taxes,
including franchise taxes measured by net income, arising
out of the transactions contemplated by this Agreement or
transfer taxes arising in connection with the transfer of
the Certificates), and reasonable costs and expenses in
defending against the same.
(c) The Sellers shall jointly and severally
indemnify, defend and hold harmless the Trustee, the
Trust and the Certificateholders from and against any
loss, liability or expense incurred by reason of (i) a
Seller's willful misfeasance, bad faith, or negligence in
the performance of its duties hereunder, or by reason of
reckless disregard of the obligations and duties hereun-
der; or (ii) any action taken, or failed to be taken, by
a Seller in respect of any portion of the Trust Property.
(d) The Sellers shall jointly and severally
indemnify, defend and hold harmless the Trustee, the
Trust and the Certificateholders from and against any
loss, liability or expense incurred by reason of the
violation by a Seller of federal or state securities laws
in connection with the registration or the sale of the
Certificates.
(e) The Sellers shall jointly and severally
indemnify, defend and hold harmless the Trustee, the
Trust and the Certificateholders from and against any
loss, liability or expense imposed upon, or incurred by,
the Trustee, the Trust or the Certificateholders as the
result of the failure of any Receivable conveyed by it to
the Trust hereunder, or the sale of the related Financed
Vehicle, to comply with all requirements of applicable
law.
(f) Indemnification under this Section 7.2
shall include reasonable fees and expenses of counsel and
expenses of litigation and shall survive termination of
the Trust. If the Sellers shall have made any indemnity
payments pursuant to this Section 7.2 and the indemnified
party thereafter shall collect any of such amounts from
Persons other than the Sellers, such indemnified party
shall immediately upon receipt thereof repay such amounts
to the Sellers, without interest.
SECTION 7.3. Merger or Consolidation of the
Sellers. Any corporation or other entity (i) into which
a Seller may be merged or consolidated, (ii) that may
result from any merger, conversion, or consolidation to
which a Seller is a party, or (iii) that may succeed by
purchase and assumption to all or substantially all of
the business of a Seller, where such Seller is not the
surviving entity, which corporation or other entity shall
have executed an agreement assuming the performance of
the obligations of such Seller under this Agreement,
shall be the successor to such Seller hereunder without
the execution or filing of any other document or any
further act by any of the parties to this Agreement. Any
affected Seller shall promptly inform the Trustee and the
Rating Agency of any such merger, conversion, consolida-
tion or purchase and assumption, where such Seller is not
the surviving entity.
SECTION 7.4. Limitation on Liability of Sell-
ers and Others. Each Seller, and any of its directors,
officers, employees or agents, may rely in good faith on
any document of any kind, believed by it to be genuine
and properly executed and submitted by any Person re-
specting any matters arising hereunder. Each Seller
shall be under no obligation under this Agreement to
appear in, prosecute or defend any legal action that
shall be unrelated to its obligations under this Agree-
ment and that in its opinion may involve it in any ex-
pense or liability.
SECTION 7.5. Sellers May Own Certificates.
Any Seller, and any Affiliate of the Sellers, may in its
individual or any other capacity become the owner or
pledgee of Certificates with the same rights as it would
have if it were not a Seller or an Affiliate thereof,
except as otherwise provided in the definition of "Cer-
tificateholder"[, "Class A Certificateholder" and "Class
B Certificateholder"] in Section 1.1. Certificates so
owned by or pledged to a Seller or such controlling,
controlled or commonly controlled Person shall have an
equal and proportionate benefit under the provisions of
this Agreement, without preference, priority, or distinc-
tion as among all of the Certificates.
ARTICLE VIII
THE SERVICER
SECTION 8.1. Representations and Warranties of
Servicer. The Servicer makes the following representa-
tions and warranties to the Trustee and the Certificate-
holders. These representations and warranties are made
as of the Closing Date, but shall survive the sale of the
Receivables and the other Trust Property to the Trust.
(i) Organization and Good Standing. The
Servicer has been duly organized and is validly
existing as a national banking association, with the
power and authority to own its properties and to
conduct its business as such properties are present-
ly owned and such business is presently conducted,
and had at all relevant times, and has, the power,
authority and legal right to service the Receiv-
ables.
(ii) Due Qualification. The Servicer has
obtained all necessary licenses and approvals, in
all jurisdictions where the failure to do so would
materially and adversely affect the ability of the
Servicer to service, or the enforceability of, the
Receivables.
(iii) Power and Authority. The Servicer
has the power, authority and legal right to execute
and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance
of this Agreement has been duly authorized by the
Servicer by all necessary corporate action.
(iv) No Consent Required. The Servicer
is not required to obtain the consent of any other
Person, or any consent, license, approval or autho-
rization or registration or declaration with, any
governmental authority, bureau or agency in connec-
tion with the execution, delivery or performance of
this Agreement.
(v) Binding Obligation; Enforceability.
This Agreement constitutes a legal, valid, and
binding obligation of the Servicer, enforceable
against the Servicer in accordance with it terms,
subject, as to enforceability, to applicable bank-
ruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other
similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and
except as such enforceability may be limited by
general principles of equity (whether considered in
a suit at law or in equity).
(vi) No Violation. The execution, deliv-
ery and performance of this Agreement, the consumma-
tion of the transactions contemplated hereby and the
fulfillment of the terms hereof will 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) a default under, the articles of
association or bylaws of the Servicer, or conflict
with or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time)
a default under, any material indenture, agreement,
mortgage, deed of trust or other instrument to which
the Servicer is a party or by which the Servicer is
bound or to which any of its properties are subject,
or result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of
trust or other instrument (other than this Agree-
ment), or violate any law, order, rule, or regula-
tion applicable to the Servicer or its properties of
any federal or state regulatory body, any court,
administrative agency, or other governmental instru-
mentality having jurisdiction over the Servicer or
any of its properties.
(vii) No Proceedings. There are no
proceedings or investigations pending, or, to the
Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency, or tribunal
or other governmental instrumentality having juris-
diction over the Servicer or its properties: (a)
asserting the invalidity of this Agreement or the
Certificates, (b) seeking to prevent the issuance of
the Certificates or the consummation of any of the
transactions contemplated by this Agreement, (c)
seeking any determination or ruling that might
materially and adversely affect the performance by
the Servicer of its obligations under, or the valid-
ity or enforceability of, this Agreement or the
Certificates, or (d) that may adversely affect the
federal or state income, excise, franchise or simi-
lar tax attributes of the Certificates.
SECTION 8.2. Liability of Servicer; Indemni-
ties. (a) The Servicer shall be liable in accordance
herewith only to the extent of the obligations specifi-
cally undertaken by the Servicer under this Agreement and
shall have no other obligations or liabilities hereunder.
(b) The Servicer shall indemnify, defend and
hold harmless the Trustee, the Trust and the Certificate-
holders from and against any and all costs, expenses,
losses, damages, claims and liabilities, including rea-
sonable fees and expenses of counsel and expenses of
litigation, arising out of or resulting from the use,
ownership, or operation by the Servicer or any Affiliate
thereof of any Financed Vehicle or in respect of any
action taken, or failed to be taken, by the Servicer with
respect to any Receivable or other portion of the Trust
Property.
(c) The Servicer shall indemnify, defend and
hold harmless the Trustee, the Trust and the Certificate-
holders from and against any taxes that may at any time
be asserted against the Trustee, the Trust or the Certif-
icateholders with respect to the transactions contemplat-
ed hereby, including any sales, gross receipts, general
corporation, tangible or intangible personal property,
privilege or license taxes (but not including any taxes
asserted with respect to, and as of the date of, the
sale, transfer and assignment of the Trust Property to
the Trust or the issuance and original sale of the Cer-
tificates, or asserted with respect to ownership of the
Receivables or other Trust Property, federal or other
income taxes, including franchise taxes measured by net
income, arising out of distributions on the Certificates
or any other transactions contemplated by this Agreement
or transfer taxes arising in connection with transfers of
the Certificates) and reasonable costs and expenses in
defending against the same.
(d) The Servicer shall indemnify, defend and
hold harmless the Trustee, the Trust and the Certificate-
holders from and against any and all costs, expenses,
losses, claims, damages, and liabilities, to the extent
that such cost, expense, loss, claim, damage, or liabili-
ty arose out of, or was imposed upon, or incurred by, the
Trustee, the Trust or the Certificateholders as a result
of the willful misfeasance, negligence, or bad faith of
the Servicer in the performance of its duties under this
Agreement.
(e) The Servicer, or, in the event that the
Trustee is also the Servicer, the predecessor Servicer,
shall jointly and severally indemnify, defend and hold
harmless the Trustee, from and against all costs, expens-
es, losses, claims, damages, and liabilities arising out
of or incurred in connection with the acceptance or
performance of the Trust and the duties herein contained,
except to the extent that such costs, expenses losses,
claims, damages or liabilities: (i) shall be due to the
willful misfeasance, negligence or bad faith of the
Trustee; (ii) relates to any tax other than the taxes
with respect to which either a Seller or the Servicer
shall be required to indemnify the Trustee; (iii) shall
arise from the Trustee's breach of any of its representa-
tions or warranties set forth in Section 10.15; (iv)
shall be one as to which a Seller is required to indemni-
fy the Trustee; or (v) shall arise out of, or be incurred
in connection with, the acceptance or performance by the
Trustee of its duties as a successor Servicer hereunder.
(f) Indemnification under this Section 8.2
shall include reasonable fees and expenses of counsel and
expenses of litigation. The indemnity obligations of the
Servicer hereunder shall survive any termination of the
Servicer pursuant to Section 9.1, but only with respect
to obligations arising prior thereto, and any payment of
the amount owing under, or the Purchase Amount with
respect to, any Receivable. If the Servicer shall have
made any indemnity payments pursuant to this Section 8.2
and the indemnified party thereafter collects any of such
amounts from others, such indemnified party shall immedi-
ately upon receipt thereof repay such amounts to the
Servicer, without interest.
SECTION 8.3. Merger or Consolidation of the
Servicer. Any corporation or other entity (i) into which
the Servicer may be merged or consolidated, (ii) that may
result from any merger, conversion, or consolidation to
which a Servicer is a party, or (iii) that may succeed by
purchase and assumption to all or substantially all of
the business of the Servicer, where the Servicer is not
the surviving entity, which corporation or other entity
shall be an Eligible Servicer and shall have executed an
agreement assuming the performance of the obligations of
the Servicer under this Agreement, shall be the successor
to the Servicer under this Agreement (without relieving
the Servicer of its responsibilities hereunder, if it
survives such merger, conversion or consolidation) with-
out any further act on the part of any of the parties to
this Agreement. The Servicer shall promptly inform the
Trustee and the Rating Agencies of any such merger,
conversion, consolidation or purchase and assumption,
where the Servicer is not the surviving entity.
SECTION 8.4. Limitation on Liability of
Servicer and Others. (a) Except as provided in this
Agreement, the Servicer shall be under no obligation to
appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the
Receivables in accordance with this Agreement and that in
its opinion may cause it to incur any expense or liabili-
ty; provided, however, that the Servicer may undertake,
at its expense, any reasonable action that it may deem
necessary or desirable in respect of this Agreement and
the rights and duties of the parties to this Agreement
and the interests of the Certificateholders under this
Agreement.
(b) The Servicer, and any director or officer
or employee or agent of the Servicer, may rely in good
faith on any document of any kind, believed by it to be
genuine and properly executed and submitted by any Person
respecting any matters arising hereunder.
SECTION 8.5. Servicer Not to Resign. The
Servicer shall not resign from its obligations and duties
under this Agreement except upon a determination that the
performance of its duties is no longer permissible under
applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trust-
ee. No such resignation shall become effective until the
Trustee or a successor Servicer shall have assumed the
responsibilities and obligations of the related Servicer
in accordance with Section 9.2.
SECTION 8.6. Servicer May Own Certificates.
The Servicer, and any Affiliate of the Servicer, may, in
its individual or any other capacity, become the owner or
pledgee of Certificates with the same rights as it would
have if it were not the Servicer or an Affiliate thereof,
except as otherwise provided in the definition of "Cer-
tificateholder" [, "Class A Certificateholder" and "Class
B Certificateholder"] in Section 1.1. Certificates so
owned by or pledged to the Servicer or such Affiliate
shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priori-
ty or distinction as among all of the Certificates.
ARTICLE IX
SERVICING TERMINATION
SECTION 9.1. Events of Servicing Termination.
(a) If any one of the following events ("Events of Ser-
vicing Termination") shall occur and be continuing:
(i) Any failure by the Servicer to deliv-
er to the Trustee the Servicer's Certificate for any
Collection Period, which shall continue beyond the
related Deposit Date, or any failure by the Servicer
to deliver to any of the Accounts or the Reserve
Account any proceeds or payment required to be so
delivered under the terms of the Certificates and
this Agreement, which shall continue unremedied for
a period of five (5) Business Days following the due
date therefor (or, in the case of a payment or
deposit to be made no later than a Deposit Date
immediately preceding a Distribution Date, the
failure to make such payment or deposit by such
Distribution Date);
(ii) Any failure on the part of the
Servicer duly to observe or to perform in any mate-
rial respect any other covenants or agreements set
forth in the Certificates or in this Agreement,
which failure shall (a) materially and adversely
affect the rights of Certificateholders and (b)
continue unremedied for a period of ninety (90) days
after the date on which written notice of such
failure, requiring the same to be remedied, shall
have been given (1) to the Servicer by the Trustee,
or (2) to the Trustee and the Servicer by the Hold-
ers of Certificates evidencing not less than a
majority of the aggregate outstanding principal
balance of the [Class A] Certificates [and the Class
B Certificates], taken together as a single class;
(iii) The entry of a decree or order by a
court or agency or supervisory authority of compe-
tent jurisdiction for the appointment of a conserva-
tor, receiver, liquidator or trustee for the
Servicer in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities, or
similar proceedings, or for the winding up or liqui-
dation of its affairs, and any such decree or order
continues unstayed and in effect for a period of
sixty (60) consecutive days;
(iv) The consent by the Servicer to the
appointment of a conservator, receiver, liquidator
or trustee in any bankruptcy, insolvency, readjust-
ment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the
Servicer or relating to substantially all of its
property, the admission in writing by the Servicer
of its inability to pay its debts generally as they
become due, the filing by the Servicer of a petition
to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, the making by
the Servicer of an assignment for the benefit of its
creditors or the voluntary suspension by the
Servicer of payment of its obligations; or
(v) The failure by the Servicer to be an
Eligible Servicer;
then, and in each and every case and so long as an Event
of Servicing Termination shall not have been cured or
waived, either the Trustee, or the Holders of Certifi-
cates evidencing not less than a majority of the aggre-
gate outstanding principal balance of the Certificates,
taken together as a single class, by notice then given in
writing to the Servicer, may, and the Trustee, at the
direction of the Holders of Certificates evidencing not
less than a majority of the aggregate outstanding princi-
pal balance of the [Class A] Certificates [and the Class
B Certificates], taken together as a single class, shall,
terminate all of the rights and obligations of the
Servicer under this Agreement. On or after the receipt
by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with
respect to the Certificates or the Trust Property or
otherwise, shall pass to and be vested in the Trustee or
successor Servicer appointed by the Trustee pursuant to
this Section 9.1; and thereupon the Trustee shall be
authorized and empowered to execute and deliver, on
behalf of the Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appro-
priate to effect the purposes of such notice of termina-
tion, whether to complete the transfer and endorsement of
the Receivable Files or the Insurance Policies, the
certificates of title to the Financed Vehicles, or other-
wise. The Servicer shall cooperate with the Trustee or
each such successor Servicer in effecting the termination
of its responsibilities and rights as Servicer under this
Agreement, including the transfer to the Trustee or such
successor Servicer for administration of all cash amounts
that are at the time held by the Servicer for deposit or
thereafter shall be received with respect to a Receiv-
able, all Receivable Files and all information or docu-
ments that the Trustee or such successor Servicer may
require. In addition, the Servicer shall transfer its
electronic records relating to the Receivables to the
successor Servicer in such electronic form as the succes-
sor Servicer may reasonably request. All reasonable
costs and expenses incurred by the successor Servicer,
including allowable compensation of employees and over-
head costs, in connection with the transfer of servicing
shall be paid by the outgoing Servicer upon presentation
of reasonable documentation of such costs and expenses.
(b) If any of the foregoing Events of Servic-
ing Termination occur, the Trustee shall have no obliga-
tion to notify Certificateholders or any other Person of
such occurrence prior to the continuance of such event
through the end of any cure period specified in Section
9.1(a).
SECTION 9.2. Trustee to Act; Appointment of
Successor Servicer. Upon the Servicer's resignation
pursuant to Section 8.5, or upon a Servicer's receipt of
notice of termination as Servicer pursuant to Section
9.1, the Trustee shall be the successor in all respects
to the Servicer in its capacity as Servicer under this
Agreement, and shall be subject to all the responsibili-
ties, duties and liabilities relating thereto placed on
the Servicer by the terms and provisions of this Agree-
ment, except that the Trustee, when acting as a successor
Servicer, shall not be obligated to purchase Receivables
pursuant to Section 3.7 unless the obligation to repur-
chase arose after the date of the notice of termination
given to the Servicer pursuant to Section 9.1, and the
Trustee shall not be liable for any acts or omissions of
such terminated Servicer or for any breach by the
Servicer of any of its representations or warranties
contained herein or in any related documents or agree-
ments. As compensation therefor, the Trustee shall be
entitled to only such compensation (whether payable out
of the Certificate Account or otherwise) as the Servicer
would have been entitled to under this Agreement if no
such notice of termination or resignation had been given.
Notwithstanding the above, the Trustee may, if it shall
be unwilling or legally unable so to act, appoint, or
petition a court of competent jurisdiction to appoint, an
Eligible Servicer as the successor to the terminated
Servicer under this Agreement. The Trustee and such
successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such
succession. The Servicer shall not resign or be relieved
of its duties under this Agreement until a newly appoint-
ed Servicer shall have assumed the responsibilities and
obligations of the terminated Servicer under this Agree-
ment.
SECTION 9.3. Effect of Servicing Transfer.
(a) After the transfer of servicing hereunder, the
Trustee or successor Servicer shall, if necessary, notify
Obligors to make directly to the successor Servicer
payments that are due under the Receivables after the
effective date of such transfer.
(b) Except as provided in Sections 8.2 and
10.8 after the transfer of servicing hereunder, the
outgoing Servicer shall have no further obligations with
respect to the management, administration, servicing,
custody or collection of the Receivables and the succes-
sor Servicer shall have all of such obligations, except
that the outgoing Servicer shall transmit or cause to be
transmitted directly to the successor Servicer for its
own account, promptly on receipt and in the same form in
which received, any amounts held by the outgoing Servicer
(properly endorsed where required for the successor
Servicer to collect any such items) received as payments
upon or otherwise in connection with the Receivables and
the outgoing Servicer shall continue to cooperate with
the successor Servicer by providing information and in
the enforcement of the Dealer Agreements and the Insur-
ance Policies.
(c) A transfer of servicing hereunder shall
not affect the rights and duties of the parties hereunder
(including the obligations and indemnities of the Sellers
pursuant to Sections 2.4, 3.3, 7.1 and 7.2 or, with
respect to obligations and indemnities arising prior to,
or concurrently with, a transfer of servicing hereunder,
the outgoing Servicer pursuant to Section 3.8, 8.1 or
8.2) other than those relating to the management, admin-
istration, servicing, custody or collection of the Re-
ceivables and the other Trust Property. The successor
Servicer shall, upon its appointment pursuant to Section
9.2 and as part of its duties and responsibilities under
this Agreement, promptly take all action it deems neces-
sary or appropriate so that the outgoing Servicer (in
whatever capacity) is paid or reimbursed all amounts it
is entitled to receive under this Agreement on each
Distribution Date subsequent to the date on which it is
terminated as Servicer hereunder.
(d) Any successor Servicer shall provide the
Sellers with access to the Receivable Files and to the
successor Servicer's records (whether written or automat-
ed) with respect to the Receivable Files. Such access
shall be afforded without charge, but only upon reason-
able request and during normal business hours at the
offices of the successor Servicer. Nothing in this
Section 9.3 shall affect the obligation of the successor
Servicer to observe any applicable law prohibiting dis-
closure of information regarding the Obligors, and the
failure of the Servicer to provide access to information
as a result of such obligation shall not constitute a
breach of this Section 9.3.
SECTION 9.4. Notification to Certificatehold-
ers. Upon any notice of an Event of Servicing Termina-
tion or upon any termination of, or appointment of a
successor to, a Servicer pursuant to this Article IX, the
Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses of
record, and to the Rating Agencies at the following
addresses: [Moody's Investors Service, Inc., 99 Church
Street, New York, New York 10007, Attention: ABS Monitor-
ing Department, 4th Floor; Standard & Poor's Ratings
Services, 26 Broadway, New York, New York 10004-1064,
Attention: Asset Backed Surveillance Group].
SECTION 9.5. Waiver of Past Events of Servic-
ing Termination. The Holders of Certificates evidencing
not less than a majority of the aggregate outstanding
principal balance of the [Class A] Certificates [and the
Class B Certificates], taken together as a single class,
may, on behalf of all Holders of Certificates waive any
Event of Servicing Termination hereunder and its conse-
quences, except an event resulting from the failure to
make any required deposits to, or payments from, any of
the Accounts or the Reserve Account in accordance with
this Agreement. Upon any such waiver of a past Event of
Servicing Termination, such event shall cease to exist,
and shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend
to any subsequent or other event or impair any right
arising therefrom, except to the extent expressly so
waived.
SECTION 9.6. Transfer of Accounts. Notwith-
standing the provisions of Section 9.1, if any of the
Accounts or the Reserve Account is maintained with the
Servicer or any Affiliate of the Servicer and an Event of
Servicing Termination shall occur and be continuing, the
Servicer shall promptly, and in any event within five (5)
Business Days, give notice to an Authorized Officer of
the Trustee of such Event of Servicing Termination, and
the Trustee, within five (5) days after the receipt of
such notice, shall establish new Eligible Deposit Ac-
counts conforming with the requirements of this Agreement
and promptly shall transfer all funds in any such Ac-
counts or the Reserve Account to such new Eligible Depos-
it Accounts.
ARTICLE X
THE TRUSTEE
SECTION 10.1. Acceptance by Trustee. The
Trustee, by its execution of this Agreement, accepts all
consideration conveyed by the Sellers pursuant to Section
2.1 and the Trust created hereunder and declares that it
shall hold such consideration in trust upon the terms
hereof set forth for the benefit of the Certificatehold-
ers.
SECTION 10.2. Duties of Trustee. (a) The
Trustee, both prior to and after the cure or waiver of an
Event of Servicing Termination of which an Authorized
Officer of the Trustee shall have actual knowledge,
undertakes to perform only such duties as are specifical-
ly set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against
the Trustee. If an Event of Servicing Termination of
which an Authorized Officer of the Trustee shall have
actual knowledge shall have occurred and shall not have
been cured (the appointment of a successor Servicer
(including the Trustee) to constitute a cure for the
purposes of this Article X) or otherwise waived, the
Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in
the conduct of his or her own affairs; provided, however,
that if the Trustee assumes the duties of the Servicer
pursuant to Section 9.2, the Trustee in performing such
duties shall use the degree of skill and attention re-
quired by Section 3.1.
(b) The Trustee, upon receipt of all resolu-
tions, certificates, statements, opinions, reports,
documents, orders, or other instruments furnished to the
Trustee that are required specifically to be furnished
pursuant to any provision of this Agreement, shall exam-
ine them to determine whether they conform to the re-
quirements of this Agreement provided, however, that the
Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opin-
ion, report, document, order or other instrument fur-
nished by the Servicer or the Seller hereunder. If any
such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trust-
ee shall notify the Certificateholders of such instrument
in the event that the Trustee, after so requesting, does
not receive a satisfactorily corrected instrument.
(c) No provision of this Agreement shall be
construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act,
or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event
of Servicing Termination of which an Authorized
Officer of the Trustee has actual knowledge, and
after the curing or waiver of all such Events of
Servicing Termination that may have occurred, the
duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations
as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into
this Agreement against the Trustee, the permissible
right of the Trustee (solely in its capacity as
such) to do things enumerated in this Agreement
shall not be construed as a duty and, in the absence
of bad faith on the part of the Trustee, or manifest
error, the Trustee (solely in its capacity as such)
may conclusively rely on the truth of the statements
and the correctness of the computations and opinions
expressed upon any certificates or opinions fur-
nished to the Trustee and conforming to the require-
ments of this Agreement;
(ii) The Trustee shall not be personally
liable for an error of judgment made in good faith
by an Authorized Officer of the Trustee, unless it
shall be proved that the Trustee shall have been
negligent in performing its duties in accordance
with the terms of this Agreement; and
(iii) The Trustee shall not be personally
liable with respect to any action taken, suffered,
or omitted to be taken in good faith in accordance
with the direction of the Holders of Certificates
evidencing not less than a majority of the aggregate
outstanding principal balance of the [Class A]
Certificates [and the Class B Certificates], taken
together as a single class, as set forth in Section
9.1, relating to the time, method and place of
conducting any proceeding or any remedy available to
the Trustee, or exercising any trust or power con-
ferred upon the Trustee, under this Agreement.
(d) The Trustee shall not be required to
expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for be-
lieving that the repayment of such funds or adequate
indemnity against such risk or liability shall not be
reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner
of performance of, any of the obligations of the Servicer
under this Agreement except during such time, if any, as
the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the
Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by
this Agreement, the Trustee shall take no action reason-
ably likely to impair the security interests created or
existing under any Receivable or Financed Vehicle or to
impair the value of any Receivable or Financed Vehicle.
(f) Except for actions expressly authorized by
this Agreement, the Trustee shall have no power to vary
the corpus of the Trust including (i) accepting any
substitute obligation for a Receivable initially assigned
to the Trustee under this Agreement, (ii) adding any
other investment, obligation or security, or (iii) with-
drawing any Receivable.
(g) The Trustee shall not be required to take
notice or be deemed to have notice or knowledge of any
default (except an event resulting from the failure to
make any required deposits to, or payments from, any of
the Accounts or the Reserve Account) or Event of Servic-
ing Termination unless an Authorized Officer of the
Trustee shall have received written notice thereof. In
the absence of receipt of such notice, the Trustee may
conclusively assume that there is no default or Event of
Servicing Termination; and
(h) Subject to the other provisions of this
Agreement and without limiting the generality of this
Section 10.2, the Trustee shall have no duty (A) to see
to any recording, filing, or depositing of this Agreement
or any agreement referred to herein or any financing
statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such re-
cording or filing or depositing or to any rerecording,
refiling or redepositing of any thereof, (B) to see to
any insurance, (C) to see to the payment or discharge of
any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to,
assessed or levied against, any part of the Trust Proper-
ty from funds available in the Certificate Account,
(D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee
pursuant to this Agreement believed by the Trustee to be
genuine and to have been signed or presented by the
proper party or parties.
SECTION 10.3. Trustee's Certificate. As soon
as practicable after each Deposit Date on which Receiv-
ables shall be assigned to a Seller pursuant to Section
2.4 or to the Servicer pursuant to Section 3.7 or 11.2,
as applicable, the Trustee shall execute a certificate,
prepared by the Servicer, including its date and the date
of the Agreement, and accompanied by a copy of the
Servicer's Certificate for the related Collection Period.
The Trustee's certificate shall operate, as of such
Deposit Date, as an assignment pursuant to Section 10.4.
SECTION 10.4. Trustee's Assignment of Pur-
chased Receivables. With respect to all Receivables
repurchased by a Seller pursuant to Section 2.4, or
purchased by the Servicer pursuant to Section 3.7 or
11.2, the Trustee shall assign, without recourse, repre-
sentation, or warranty, to such Seller or the Servicer,
as the case may be, all the Trustee's right, title, and
interest in, to and under such Receivables, and all
security and documents and all other Trust Property
conveyed pursuant to Section 2.1 with respect to such
Receivables. Such assignment shall be a sale and assign-
ment outright, and not for security.
SECTION 10.5. Certain Matters Affecting the
Trustee. Except as otherwise provided in Section 10.2:
(i) The Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate of auditors or accoun-
tants or any other certificate, statement, instru-
ment, opinion, report, notice, request, direction,
consent, order, appraisal, bond, note or other paper
or document believed by it to be genuine and to have
been signed or presented by the proper party or
parties.
(ii) The Trustee may consult with counsel
and any Opinion of Counsel or any advice of such
counsel shall be full and complete authorization and
protection in respect of any action taken or suf-
fered or omitted by it under this Agreement in good
faith and in accordance with such Opinion of Counsel
or any advice of such counsel.
(iii) The Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agree-
ment or in relation to this Agreement, at the re-
quest, order or direction of any of the Certificate-
holders pursuant to the provisions of this Agree-
ment, unless such Certificateholders shall have
offered to the Trustee reasonable security or indem-
nity against the costs, expenses, and liabilities
that may be incurred therein or thereby. Nothing
contained in this Agreement, however, shall relieve
the Trustee of the obligations, upon the occurrence
of an Event of Servicing Termination of which an
Authorized Officer of the Trustee shall have actual
knowledge that is not timely cured or waived pursu-
ant to Section 9.5, to exercise such of the rights
and powers vested in it by this Agreement, and to
use the same degree of care and skill in their
exercise as a prudent person would exercise or use
under the circumstances in the conduct of his or her
own affairs.
(iv) The Trustee shall not be personally
liable for any action taken, suffered or omitted by
it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred
upon it by this Agreement.
(v) Prior to the occurrence of an Event
of Servicing Termination of which an Authorized
Officer of the Trustee shall have actual knowledge
and after the curing or waiver of all Events of
Servicing Termination that may have occurred, the
Trustee shall not be bound to make any investigation
into the facts of any matters stated in any resolu-
tion, certificate, statement, instrument, opinion,
report, notice, request, consent, direction, order,
approval, bond, note or other paper or document,
unless requested in writing so to do by Holders of
Certificates evidencing not less than a majority of
the aggregate outstanding principal balance of the
[Class A] Certificates [and the Class B Certifi-
cates], taken together as a single class; provided,
however, that if the payment within a reasonable
time to the Trustee of the costs, expenses, or
liabilities likely to be incurred by it in the
making of an investigation requested by the Certifi-
cateholders is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against
such cost, expense, or liability as a condition to
so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer, or, if
paid by the Trustee, shall be reimbursed by the
Servicer upon demand. Nothing in this clause (v)
shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of
information regarding the Obligors; provided, fur-
ther, that the Trustee shall be entitled to make
such further inquiry or investigation into such
facts or matters as it may reasonably deem fit, and
if the Trustee shall determine to make such further
inquiry or investigation it shall be entitled to
examine the books and records of the Servicer or
Sellers, personally or by agent or attorney, at the
sole cost and expense of the Servicer or Sellers, as
the case may be.
(vi) The Trustee may execute any of the
trusts or powers hereunder or perform any duties
under this Agreement either directly or by or
through agents, attorneys, nominees or a custodian,
and shall not be liable for the acts of such agents,
attorneys, nominees or custodians, provided that
they have been appointed with due care.
(vii) The Trustee shall not be required
to make any initial or periodic examination of any
documents or records related to the Receivables or
Financed Vehicles for the purpose of establishing
the presence or absence of defects, the compliance
by the Sellers with their representations and war-
ranties or for any other purpose.
(viii) The right of the Trustee to per-
form any discretionary act enumerated in this Agree-
ment shall not be construed as a duty, and the
Trustee shall not be answerable for other than its
gross negligence or willful misconduct in the per-
formance of, or failure to perform, such act.
(ix) The Trustee shall not be required to
give any bond or surety in respect of the execution
of the Trust created hereby or the powers granted
hereunder.
SECTION 10.6. Trustee Not Liable for Certifi-
cates or Receivables. The Trustee assumes no responsi-
bility for the correctness of the recitals contained
herein and in the Certificates (other than the certifi-
cate of authentication on the Certificates). Except as
expressly provided herein, the Trustee makes no represen-
tations as to the validity or sufficiency of this Agree-
ment or of the Certificates (other than the Trustee's
execution of, and the certificate of authentication on,
the Certificates), or of any Receivable or related docu-
ment, or for the validity of the execution by the Sellers
and the Servicer of this Agreement or of any supplements
hereto or instruments of further assurance, or for the
sufficiency of the Trust Property hereunder, and the
Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, condi-
tions or agreements on the part of the Sellers or the
Servicer under this Agreement except as herein set forth;
but the Trustee may require the Sellers or the Servicer
to provide full information and advice as to the perfor-
mance of the aforesaid covenants, conditions and agree-
ments. The Trustee (solely in its capacity as such)
shall have no obligation under any circumstance to per-
form any of the duties of the Sellers or of the Servicer
except as explicitly set forth in this Agreement. The
Trustee shall have no liability in connection with com-
pliance of the Servicer or the Sellers with statutory or
regulatory requirements related to the Receivables. The
Trustee shall not make or be deemed to have made any
representations or warranties with respect to the Receiv-
ables or the validity or sufficiency of any assignment of
the Receivables to the Trust or the Trustee. The Trustee
(solely in its capacity as such) shall at no time have
any responsibility or liability for, or with respect to,
the legality, validity or enforceability of any security
interest in any Financed Vehicle or (prior to the time,
if any, that the Servicer is terminated as custodian
hereunder) any Receivable, or the perfection and priority
of such a security interest or the maintenance of any
such perfection and priority, the efficacy of the Trust
or its ability to generate funds sufficient to provide
for the payments to be distributed to Certificateholders
under this Agreement, the existence, condition, location,
and ownership of any Financed Vehicle, the existence and
enforceability of any Insurance Policy, the existence and
contents of any Receivable or any computer or other
record thereof, the validity of the assignment of any
Receivable to the Trust or of any intervening assignment,
the completeness of any Receivable, the performance or
enforcement of any Receivable, the compliance by the
Sellers with any warranty or representation made by them
(whether individually or together) under this Agreement
or in any related document and the accuracy of any such
warranty or representation, prior to the Trustee's re-
ceipt of notice or other discovery of any noncompliance
therewith or any breach thereof, any investment of monies
by the Servicer or any loss resulting therefrom (it being
understood that the Trustee shall remain responsible for
any Trust Property that it may hold), the acts or omis-
sions of the Sellers, the Servicer or any Obligor, any
action of the Servicer taken in the name of the Trustee,
or any action by the Trustee taken at the instruction of
the Servicer (provided that such instruction is not in
express violation of the terms and provisions of this
Agreement); provided, however, that the foregoing shall
not relieve the Trustee of its obligation to perform its
duties under this Agreement. Except with respect to a
claim based on the failure of the Trustee to perform its
duties under this Agreement (whether in its capacity as
Trustee or as successor Servicer) or based on the
Trustee's willful misconduct, negligence, or bad faith,
or based on the Trustee's breach of a representation and
warranty contained in Section 10.15, no recourse shall be
had to the Trustee (whether in its individual capacity or
as a Trustee) for any claim based on any provision of
this Agreement, the Certificates, or any Receivable or
assignment thereof against the Trustee in its individual
capacity; the Trustee shall not have any personal obliga-
tion, liability, or duty whatsoever to any Certificate-
holder or any other Person with respect to any such
claim. The Trustee shall not be accountable for the use
or application by the Sellers of the proceeds of such
Certificates, or for the use or application of any funds
paid to the Servicer in respect of the Receivables prior
to the time such amounts are deposited in the Certificate
Account (whether or not the Certificate Account is main-
tained with the Trustee). The Trustee shall have no
responsibility for filing any financing or continuation
statement in any public office at any time or to other-
wise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to record
this Agreement.
SECTION 10.7. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may
transact banking business with the Sellers, the Servicer
and their respective Affiliates with the same rights as
it would have if it were not Trustee.
SECTION 10.8. Trustee's Fees and Expenses.
The Servicer agrees to pay to the Trustee, and the Trust-
ee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for
all services rendered by it in the execution of the
trusts created by this Agreement and in the exercise and
performance of any of the powers and duties under this
Agreement as the Trustee, and the Servicer shall pay or
reimburse the Trustee upon its request for all reasonable
expenses (including, without limitation, expenses in-
curred in connection with notices or other communications
to Certificateholders), disbursements, and advances
(including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of all
persons not regularly in its employ) incurred or made by
the Trustee in accordance with any of the provisions of
this Agreement (including the reasonable fees and expens-
es of its agents, any co-trustee and counsel) or in
defense of any action brought against it in connection
with this Agreement except any such expense, disburse-
ment, or advance as may arise from its willful miscon-
duct, negligence or bad faith. The Servicer's covenant
to pay the expenses, disbursements and advances provided
for in the preceding sentence shall survive the termina-
tion of this Agreement.
SECTION 10.9. Trustee May Enforce Claims
Without Possession of Certificates. All rights of action
and claims under this Agreement or the Certificates may
be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in
its own name, as trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable
benefit of the Certificateholders in respect of which
such judgment has been obtained.
SECTION 10.10. Eligibility Requirements for
Trustee. The Trustee under this Agreement shall at all
times have an office in the same state as the
is located on the date of this Agreement or which
is otherwise consented to by the Sellers. The Trustee
shall be organized and doing business under the banking
laws of such state or of the United States, shall be
authorized under such laws to exercise corporate trust
powers, shall have a consolidated net worth of at least
$50,000,000, shall have a credit rating of at least Baa3
from Moody's and shall be subject to supervision or
examination by federal or state banking authorities. 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 10.10, the consolidated
net worth of such corporation shall be deemed to be its
consolidated capital and surplus as set forth in its most
recent consolidated report of condition so published. In
case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 10.10,
the Trustee shall resign immediately in the manner and
with the effect specified in Section 10.11.
SECTION 10.11. Resignation or Removal of
Trustee. (a) The Trustee may at any time resign and be
discharged from the trusts hereby created by giving
thirty (30) days' prior written notice thereof to the
Servicer. Upon receiving such notice of resignation, the
Servicer shall promptly appoint a successor Trustee, by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee
and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment
of a successor Trustee.
(b) If at any time the Trustee shall cease to
be eligible in accordance with the provisions of Section
10.10 and shall fail to resign after written request
therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver, conservator or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquida-
tion, then the Servicer may remove the Trustee. If the
Trustee is removed under the authority of the immediately
preceding sentence, the Servicer shall promptly appoint a
successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the
Trustee so removed, the successor Trustee, the Certifi-
cateholders at their respective addresses of record and
the Rating Agencies.
(c) Any resignation or removal of the Trustee
and appointment of a successor Trustee pursuant to any of
the provisions of this Section 10.11 shall not become
effective until acceptance of appointment by the succes-
sor Trustee pursuant to Section 10.12.
(d) The respective obligations of the Sellers
and the Servicer described in this Agreement shall sur-
vive the removal or resignation of the Trustee as provid-
ed in this Agreement.
SECTION 10.12. Successor Trustee. (a) Any
successor Trustee appointed pursuant to Section 10.11
shall execute, acknowledge, and deliver to the Servicer
and to its predecessor Trustee an instrument accepting
such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall
become effective and such successor Trustee, without any
further act, deed or conveyance, shall become fully
vested with all rights, powers, duties, and obligations
of its predecessor under this Agreement, with like effect
as if originally named as Trustee. The predecessor
Trustee shall deliver to the successor Trustee all docu-
ments and statements held by it under this Agreement, and
the Servicer and the predecessor 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 Trustee all such
rights, powers, duties, and obligations.
(b) No successor Trustee shall accept appoint-
ment as provided in this Section 10.12 unless at the time
of such acceptance such successor Trustee shall be eligi-
ble pursuant to Section 10.10.
(c) Upon acceptance of appointment by a suc-
cessor Trustee pursuant to this Section 10.12, the
Servicer shall mail notice of such acceptance by the
successor Trustee under this Agreement to all Certifi-
cateholders at their respective addresses of record and
to the Rating Agencies. If the Servicer shall fail to
mail such notice within ten (10) days after acceptance of
appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the
expense of the Servicer.
SECTION 10.13. Merger or Consolidation of
Trustee. Any corporation or banking association which is
eligible to be a successor Trustee under Section 10.10
(i) into which the Trustee may be merged or consolidated,
(ii) that may result from any merger, conversion, or
consolidation to which the Trustee shall be a party, or
(iii) that may succeed by purchase and assumption to the
business of the Trustee, where the Trustee is not the
surviving entity, which corporation or banking associa-
tion executes an agreement of assumption to perform every
obligation of the Trustee under this Agreement, shall be
the successor of the Trustee hereunder, without the
execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein
to the contrary notwithstanding. The Trustee shall
promptly notify the Sellers, the Servicer and the Rating
Agencies of any such merger, conversion, consolidation or
purchase and assumption, where the Trustee is not the
surviving entity.
SECTION 10.14. Appointment of Co-Trustee or
Separate Trustee. (a) Notwithstanding any other provi-
sions of this Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in
which any part of the Trust Property or any Financed
Vehicle may at the time be located, the Servicer and the
Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or
more Persons approved by the Trustee to act as co-trust-
ee, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and
to vest in such Person, in such capacity and for the
benefit of the Certificateholders, such title to the
Trust, or any part thereof, and, subject to the other
provisions of this Section 10.14, such powers, duties,
obligations, rights, and trusts as the Servicer and the
Trustee may consider necessary or desirable. If the
Servicer shall not have joined in such appointment within
fifteen (15) days after the receipt by the Servicer of a
request so to do, or in case an Event of Servicing Termi-
nation shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as a succes-
sor Trustee pursuant to Section 10.10 and no notice to
Certificateholders of the appointment of any co-trustee
or separate Trustee shall be required pursuant to Section
10.12. Notwithstanding the appointment of a co-trustee
or separate trustee hereunder, the Trustee shall not be
relieved of any of its obligations under this Agreement.
(b) 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
obligations conferred or imposed upon the Trustee
shall be conferred upon and exercised or performed
by the 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 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 (whether as Trustee under this
Agreement or as successor to the Servicer under this
Agreement), the 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 Proper-
ty or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the
direction of the 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.
(iii) The Servicer and the Trustee acting
jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given
to the Trustee shall be deemed to have been given to each
of the then separate trustees and co-trustees, as effec-
tively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer
to this Agreement and in particular to the provisions of
this Article 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 Trust-
ee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically in-
cluding every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording
protection to, the Trustee. Each such instrument shall
be filed with the Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may, at
any time, appoint the Trustee 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 Trustee, to the extent
permitted by law, without the appointment of a new or
successor trustee. The Trustee shall promptly notify the
Servicer and the Rating Agencies of any appointment made
pursuant to this Section 10.14.
SECTION 10.15. Representations and Warranties
of Trustee. The Trustee makes the following representa-
tions and warranties on which the Sellers, the Servicer,
and Certificateholders may rely:
(i) Organization and Good Standing. The
Trustee is a _________________ [corporation] duly
organized, validly existing, and in good standing
under the laws of the State of _______; and
(ii) Power and Authority. The Trustee
has full power, authority and legal right to exe-
cute, deliver, and perform this Agreement and has
taken all necessary action to authorize the execu-
tion, delivery, and performance by it of this Agree-
ment.
SECTION 10.16. Reports by Trustee. The Trust-
ee shall provide to any Certificateholder or Certificate
Owner who so requests in writing (addressed to the
[__________]) a copy of any Servicer's Certificate, the
annual statement described in Section 3.10, and the
annual accountant's reports described in Section 3.11.
The Trustee may require any Certificateholder or Certifi-
cate Owner requesting such report to pay a reasonable sum
to cover the cost of the Trustee's complying with such
request.
SECTION 10.17. Tax Accounting. The Servicer
shall prepare or shall cause to be prepared any tax
returns required to be filed by the Trust and shall remit
such returns to the Trustee for signature at least five
(5) days before such returns are due to be filed. The
Trustee, upon request, will furnish the Servicer with all
such information known to the Trustee as may be reason-
ably required in connection with the preparation of all
tax returns of the Trust, and shall, upon request, exe-
cute such returns. The Servicer shall prepare the tax
returns of the Trust in accordance with the Code and any
regulations (including, to the extent applicable by their
terms, proposed regulations) thereunder.
[(a)] The [Class A] Certificateholders shall
be treated as owning the [Class A] Percentage of Interest
Collections (but limited to the [Class A] Certificate
Rate plus the Servicing Fee Rate) and Available Principal
[and the Class B Certificateholders shall be treated as
owning the Class B Percentage of Interest Collections
(but limited to the Class B Certificate Rate plus the
Servicing Fee Rate) and Available Principal]. The Sell-
ers shall be treated as having retained stripped coupons
on the [Class A] Percentage [and the Class B Percentage]
of each Receivable equal to the difference between the
Contract Rate of such Receivable and the portion owned by
the [Class A] Certificateholders [and the Class B Certif-
icateholders, respectively,] pursuant to this paragraph.
[(b) To the extent that as a result of the
subordination provisions of this Agreement, actual cash
distributions to the Class B Certificateholders are less
than the amount set forth in subsection (a), the Class B
Certificateholders shall be deemed to have (i) received
the amount set forth in subsection (a), (ii) paid such
difference to the Class A Certificateholders pursuant to
a guaranty of the Class A Certificates and (iii) become
subrogated to the rights of the Class A Certificatehold-
ers to recovery of the amounts so paid.]
ARTICLE XI
TERMINATION
SECTION 11.1. Termination of the Trust. (a)
The Trust, and the respective obligations and responsi-
bilities of the Sellers, the Servicer, and the Trustee
hereunder shall terminate (except as otherwise expressly
provided herein) upon the earliest of: (i) the Distribu-
tion Date next succeeding the purchase by the Servicer at
its option, pursuant to Section 11.2, of the Receivables
remaining in the Trust, (ii) the payment to Certificate-
holders of all amounts required to be paid to them pursu-
ant to this Agreement or (iii) the Distribution Date next
succeeding the month which is six (6) months after the
maturity or the liquidation of the last Receivable held
in the Trust and the disposition of any amounts received
upon liquidation of any property remaining in the Trust;
provided, however, that in no event shall the Trust
created by this Agreement continue beyond the expiration
of [21 years from the date hereof]. The Servicer shall
promptly notify the Trustee of any prospective termina-
tion pursuant to this Section 11.1.
(b) Notice of any termination, specifying the
Distribution Date upon which the Certificateholders may
surrender the Certificates to the Trustee for payment of
the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders
and the Rating Agencies mailed not earlier than the 15th
day and not later than the 25th day of the month next
preceding the specified Distribution Date stating the
amount of any such final payment and 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
Trustee therein specified. Upon presentation and surren-
der of the Certificates, the Trustee shall cause to be
distributed to Certificateholders amounts distributable
on such Distribution Date pursuant to Section 4.5.
Amounts remaining after distribution, or providing for
distribution, to the Certificateholders shall be distrib-
uted to the Servicer.
(c) In the event that all of the Certificate-
holders shall not surrender their Certificates for can-
cellation within six (6) months after the date specified
in the above-mentioned written notice, the 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. The Trustee shall after giving such notice
deliver or cause to be delivered to the Servicer the
Certificate Register. If, within one (1) year after the
second notice, all the Certificates shall not have been
surrendered for cancellation, the Servicer may take
appropriate steps, or may appoint an agent to take appro-
priate 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. Any funds
remaining in the Trust after exhaustion of such remedies
shall be distributed by the Trustee to the Sellers.
SECTION 11.2. Optional Purchase of All Receiv-
ables. In the event that (i) the Pool Balance shall be
5% or less of the Initial Pool Balance as of the last day
of any Collection Period, the Servicer, on behalf of the
Sellers, shall have the option to purchase the corpus of
the Trust on any Distribution Date occurring in a subse-
quent Collection Period. To exercise such option, the
Servicer shall notify the Trustee no later than the tenth
(10th) day of the month in which such repurchase is to be
effected and deposit the aggregate Purchase Amount for
the Receivables into the Certificate Account on the
Deposit Date occurring in the month in which such repur-
chase is to be effected. The payment shall be made in
the manner specified in Section 4.3, and shall be dis-
tributed pursuant to Section 4.5. Upon such payment the
Servicer shall succeed to and own all interests in and to
the Trust and the Trust Property.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Amendment. (a) This Agreement
may be amended by the Sellers, the Servicer and the
Trustee, without the consent of any of the Certificate-
holders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provi-
sions of this Agreement or modifying in any matter the
rights of the Certificateholders; provided, however, that
such action shall not, as evidenced by an Opinion of
Counsel to the Sellers delivered to the Trustee, materi-
ally adversely affect the interests of any Certificate-
holder or cause the Trust to be classified for federal
tax purposes as an association taxable as a corporation.
(b) This Agreement may also be amended from
time to time by the Sellers, the Servicer and the Trust-
ee, with the consent of the Holders of Certificates
evidencing not less than a majority of the aggregate
outstanding principal balance of the [Class A] Certifi-
cates [and the Class B Certificates], taken together as a
single class, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any
manner the rights of the Certificateholders; 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 allocation or priority
of, collections of payments on Receivables or distribu-
tions that are required to be made on any Certificate,
without the consent of all adversely affected Certifi-
cateholders, (ii) reduce the percentage of the aggregate
outstanding principal balance of the Certificates the
holders of which are required to consent to any such
amendment, without the consent of all Certificateholders,
(iii) materially adversely affect the interests of [ei-
ther] the [Class A] Certificateholders [or the Class B
Certificateholders] without the consent of the holders of
[Class A] Certificates [or Class B Certificates, as the
case may be,] evidencing not less than a majority of the
aggregate outstanding principal balance of the [Class A]
Certificates [or the Class B Certificates, as the case
may be], (iv) adversely affect the rating of the [Class
A] Certificates [or the Class B Certificates] by the
Rating Agencies without the consent of holders of [Class
A] Certificates [or Class B Certificates, as the case may
be,] evidencing not less than 66 2/3% of the aggregate
outstanding principal balance of the [Class A] Certifi-
cates [or the Class B Certificates, as the case may be,]
or (v) cause the Trust to be classified as an association
taxable as a corporation. Promptly after the execution
of any such amendment or consent, the Trustee shall
furnish written notification of the substance of such
amendment or consent to each Certificateholder.
(c) It shall not be necessary for the consent
of Certificateholders pursuant to this Section 12.1 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 of evidencing the authorization of the
execution thereof by Certificateholders shall be subject
to such reasonable requirements as the Trustee may pre-
scribe.
(d) Notice of any amendment of this Agreement
shall be sent by the Servicer to the Rating Agencies, at
such address as the Rating Agencies may from time to time
specify in writing.
(e) The Trustee may, but shall not be obligat-
ed to, enter into any such amendment which affects the
Trustee's own rights, duties or immunities under this
Agreement or otherwise.
(f) In connection with any amendment pursuant
to this Section 12.1, the Trustee shall be entitled to
receive an Opinion of Counsel to the effect that such
amendment is authorized or permitted by the Agreement.
SECTION 12.2. Protection of Title to Trust.
(a) The Servicer shall execute and file such financing
statements and cause to be executed and filed such con-
tinuation statements, all in such manner and in such
places as may be required by law fully to preserve,
maintain and protect the interest of the Certificatehold-
ers and the Trustee under this Agreement in the Trust
Property and in the proceeds thereof. The Servicer shall
deliver (or cause to be delivered) to the Trustee file-
stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following
such filing. In the event the Servicer fails to perform
its obligations under this subsection, the Trustee may
(but shall not be obligated to) do so, at the expense of
the Servicer.
(b) Neither the Sellers nor the Servicer shall
change its name, identity, or corporate structure in any
manner that would, could, or might make any financing
statement or continuation statement filed by the Servicer
in accordance with paragraph (a) above seriously mislead-
ing within the meaning of SECTION 9-402(7) of the Relevant UCC,
unless it shall have given the Trustee at least sixty
Business Days prior written notice thereof.
(c) The Sellers and the Servicer shall give
the Trustee at least ten Business Days prior written
notice of any relocation of their respective principal
executive offices if, as a result of such relocation, the
applicable provisions of the Relevant UCC would require
the filing of any amendment of any previously filed
financing or continuation statement or of any new financ-
ing statement. The Sellers and the Servicer shall at all
times maintain each office from which they shall service
Receivables, and their respective principal executive
offices, within the United States of America.
(d) The Servicer shall maintain accounts and
records as to each Receivable accurately and in suffi-
cient detail to permit (i) the reader thereof to know, as
of the most recent monthly calculation, the status of
such Receivable, including payments and Recoveries made
and payments owing (and the nature of each), and (ii)
reconciliation between payments or Recoveries on (or with
respect to) each Receivable and the amounts from time to
time deposited in the Certificate Account in respect of
such Receivable.
(e) The Servicer shall maintain its computer
systems so that, from and after the time of sale under
this Agreement of the Receivables to the Trustee, the
Servicer's master computer records (including archives)
that shall refer to a Receivable indicate clearly that
such Receivable is owned by the Trust. Indication of the
Trust's ownership of a Receivable shall be deleted from
or modified on the Servicer's computer systems when, and
only when, the Receivable shall be paid or shall become a
Purchased Receivable.
(f) If at any time a Seller or the Servicer
shall propose to sell, grant a security interest in, or
otherwise transfer any interest in motor vehicle receiv-
ables to any prospective purchaser, lender or other
transferee, such Seller or the Servicer, as the case may
be, shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs
(including any restored from archives) that, if they
shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold
and is owned by the Trust.
(g) Upon request, the Servicer, at its ex-
pense, shall furnish to the Trustee, within ten (10)
Business Days, a list of all Receivables then held as
part of the Trust, together with a reconciliation of such
list to each Schedule of Receivables and to each of the
Servicer's Certificates furnished pursuant to Section 3.9
indicating removal of Receivables from the Trust.
SECTION 12.3. Limitation on Rights of Certifi-
cateholders. (a) The death or incapacity of any Certif-
icateholder shall not operate to terminate this Agreement
or the Trust, or entitle the Certificateholder's legal
representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court
for a partition or winding up of the Trust, or otherwise
affect the rights, obligations, and liabilities of the
parties to this Agreement or any of them.
(b) No Certificateholder shall have any right
to vote (except as expressly provided herein) or in any
manner otherwise control the operation and management of
the Trust, or the obligations of the parties to this
Agreement, nor shall anything set forth in this Agree-
ment, or contained in the terms of the Certificates, be
construed so as to constitute the Holders as partners or
members of an association; nor shall any Certificatehold-
er be under any liability to any third party by reason of
any action taken pursuant to any provision of this Agree-
ment.
(c) No Certificateholder shall have any right
by virtue or by availing itself of any provisions of this
Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given
to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless
the Holders of the Certificates evidencing not less than
a majority of the aggregate outstanding principal balance
of the [Class A] Certificates [and the Class B Certifi-
cates], taken together as a single class, shall have made
written request upon the Trustee to institute such ac-
tion, suit, or proceeding in its own name as Trustee
under the Agreement and shall have offered to the Trustee
such reasonable indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for thirty (30) days after
its receipt of such notice, request, and offer of indem-
nity, shall have neglected or refused to institute any
such action, suit or proceeding; no one or more Holders
of Certificates shall have any right in any manner what-
ever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or preju-
dice the rights of the Holders of any other of the Cer-
tificates, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any
right, under this Agreement, except in the manner provid-
ed in this Agreement and for the equal, ratable, and
common benefit of all [Class A] Certificateholders [or
Class B Certificateholders, as the case may be]. For the
protection and enforcement of the provisions of this
Section 12.3, each Certificateholder and the Trustee
shall be entitled to such relief as can be given either
at law or in equity.
SECTION 12.4. GOVERNING LAW. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REME-
DIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETER-
MINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.5. Notices. All demands, notices,
and communications under this Agreement shall be in
writing, personally delivered, or sent by telecopier,
overnight courier or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of a Seller or
Servicer, to the applicable Seller or the Servicer, c/o
NationsBank, N.A., NationsBank Corporate Center, 100
North Tryon Street, Charlotte, North Carolina 28255, or
at such other address as shall be designated by such
Seller or Servicer in a written notice to the Trustee and
(b) in the case of the Trustee, at the
__________________. Any notice required or permitted to
be mailed to a Certificateholder shall be given by first
class mail, postage prepaid, at the address of record of
such Holder. Any notice so mailed within the time pre-
scribed in this Agreement shall be conclusively presumed
to have been duly given, whether or not the Certificate-
holder shall receive such notice.
SECTION 12.6. Severability of Provisions. If
any one or more of the covenants, provisions or terms of
this Agreement shall be for any reason whatsoever held
invalid, then such covenants, provisions or terms shall
be deemed severable from the remaining covenants, provi-
sions or terms of this Agreement, and shall in no way
affect the validity or enforceability of the other provi-
sions of this Agreement or of the Certificates or the
rights of the Holders thereof.
SECTION 12.7. Assignment. Notwithstanding
anything to the contrary contained herein, except as
provided in Section 8.3, this Agreement may not be as-
signed by the Servicer. This Agreement may not be as-
signed or subcontracted by the Trustee except as provided
by Sections 10.11 through 10.14 hereof.
SECTION 12.8. Certificates Nonassessable and
Fully Paid. The interests represented by the Certifi-
cates shall be nonassessable for any losses or expenses
of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Trustee pursuant to Section
6.2, each Certificate shall be deemed fully paid.
SECTION 12.9. Intention of Parties. (a) The
execution and delivery of this Agreement shall constitute
an acknowledgment by the Sellers and the Trustee, on
behalf of the Certificateholders, that it is intended
that the assignment and transfer herein contemplated
constitute a sale and assignment outright of, and not a
security interest in, the Receivables and the other Trust
Property, conveying good title thereto free and clear of
any liens, from the Sellers to the Trust, and that the
Receivables and the other Trust Property shall not be a
part of any Seller's estate in the event of the insolven-
cy, receivership, conservatorship or the occurrence of
another similar event, of, or with respect to, such
Seller. In the event that such conveyance is determined
to be made as security for a loan made by the Trust or
the Certificateholders to a Seller, the parties intend
that such Seller shall have granted to the Trustee a
security interest in all of such Seller's right, title
and interest in, to and under the Trust Property conveyed
to the Trust pursuant to Section 2.1 in order to secure
the obligations under the Certificates, and that this
Agreement shall constitute a security agreement under
applicable law.
(b) The execution and delivery of this Agree-
ment shall constitute an acknowledgment by the Sellers
and the Trustee on behalf of the Certificateholders that
they intend that the Trust be classified (for federal tax
purposes) as a grantor trust under Subpart E, Part I of
Subchapter J of the Internal Revenue Code of which the
Certificateholders are owners, and not as an association
taxable as a corporation. The powers granted and obliga-
tions undertaken in this Agreement shall be construed so
as to further such intent.
SECTION 12.10. Counterparts. For the purpose
of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed simulta-
neously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all
of which counterparts shall constitute but one and the
same instrument.
SECTION 12.11. Limitation of Liability of the
Trustee and the Collateral Agent. Notwithstanding any-
thing contained herein to the contrary (i) this Agreement
has been accepted by _____________, not in its individual
capacity but solely as Trustee and as Collateral Agent
with respect to the Reserve Account and in no event shall
_____________ have any liability for the representations,
warranties, covenants, agreements or other obligations of
the Sellers hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets
of the Sellers and (ii) under no circumstances shall
_____________ be personally liable for the payment of any
indebtedness or expenses of the Trust; provided, however,
nothing contained herein shall relieve _____________ of
its obligations contained herein in its capacity as
successor Servicer. Notwithstanding anything to the
contrary contained herein, the Collateral Agent shall
have the same rights and protections afforded to the
Trustee under this Agreement.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their re-
spective officers thereunto duly authorized as of the day
and year first above written.
NATIONSBANK, N.A.,
as Seller and as Servicer
By:
Name:
Title:
NATIONSBANK, N.A. (SOUTH)
as Seller
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Seller
By:
Name:
Title:
__________________
not in its individual capacity but
solely as Trustee
By:
Name:
Title:
___________________
not in its individual capacity but
solely as Collateral Agent
By:
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
Available from the Trustee
SCHEDULE B
LOCATIONS OF RECEIVABLE FILES
NationsBanc Services, Inc.
4161 Piedmont Parkway
Greensboro, North Carolina 27410
NationsBanc Services, Inc.
411 North Akard Street
7th Floor
Dallas, Texas 75201
EXHIBIT A
[FORM OF [CLASS A] CERTIFICATE]
NATIONSBANK AUTO GRANTOR TRUST 199_-_
5.85% ASSET BACKED CERTIFICATE, [CLASS A]
Evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of retail
motor vehicle installment sales contracts secured by the new and
used automobiles, vans and light-duty trucks financed thereby and
sold to the Trust by NationsBank, N.A., NationsBank, N.A. (South)
and NationsBank of Texas, N.A.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN
THE TRUST AND DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
NATIONSBANK, N.A., NATIONSBANK, N.A. (SOUTH) OR NATIONSBANK OF
TEXAS, N.A. OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE
RECEIVABLES ARE NOT DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMEN-
TAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTA-
TIVE OF [THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC")], TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANS-
FER, 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] (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DTC]), ANY TRANS-
FER, 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.
CUSIP No:____________
$_________________
Initial Principal
Amount
THIS CERTIFIES THAT ____________________ is the regis-
tered owner of a __________ dollars, nonassessable, fully paid,
fractional undivided interest in the NationsBank Auto Grantor
Trust 199_-_ (the "Trust") formed by NationsBank, N.A.,
NationsBank, N.A. (SOUTH) and NationsBank of Texas, N.A., each a
national banking association (together, the "Sellers"). The
Trust was created pursuant to a Pooling and Servicing Agreement
dated as of _________, 1996 (as amended, supplemented or other-
wise modified and in effect from time to time, the "Agreement")
by and among the Sellers, NationsBank N.A., as servicer (the
"Servicer"), and _____________, as trustee (the "Trustee") and as
collateral agent, a summary of certain of the provisions of which
is set forth on the reverse hereof.
To the extent not otherwise defined herein, the capi-
talized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is one of the duly authorized
Certificates designated as "____% Asset Backed Certificates,
[Class A]" (herein called the "Certificates"). This Certificate
is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which the Holder of this Certifi-
cate by virtue of the acceptance hereof assents and by which such
Holder is bound. The Trust Property includes (as more fully
described in the Agreement) a pool of retail motor vehicle
installment sales contracts (the "Receivables") for the purchase
of new and used automobiles, vans and light-duty trucks financed
thereby (the "Financed Vehicles"), certain monies received
thereunder after the close of business of the Servicer on
___________, ____ (the "Cut-Off Date"), the Sellers' security
interests in the Financed Vehicles and all proceeds of the
foregoing.
Subject to the terms and conditions of the Agreement
(including the availability of funds for distributions) and until
the obligations created by the Agreement shall have terminated in
accordance therewith, there will be distributed, but only from
funds on deposit in the [Class A] Distribution Account, on the
15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (each such date, a "Distri-
bution Date"), commencing December 15, 1995, to the Person in
whose name this Certificate is registered at the close of busi-
ness of the Trustee on the day immediately preceding such Distri-
bution Date (or, if Definitive Certificates are issued, the last
day of the Collection Period immediately preceding such Distribu-
tion Date) (the "Record Date"), such Certificateholder's frac-
tional undivided interest in the amounts to be distributed to
[Class A] Certificateholders pursuant to the Agreement on such
Distribution Date.
Distributions on this Certificate will be made by the
Trustee by check mailed to the Certificateholder of record at its
address as it appears in the Certificate Register without the
presentation or surrender of this Certificate or the making of
any notation hereon, except that with respect to a Certificate
registered in the name of a Clearing Agency or its nominee,
distributions will be made by wire transfer of immediately
available funds. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained
for that purpose by the Trustee in the Borough of Manhattan, the
City of New York.
This Certificate does not purport to summarize the
Agreement and reference is hereby made to the Agreement for
information with respect to the rights, benefits, obligations and
duties evidenced thereby. A copy of the Agreement may be exam-
ined during normal business hours at the ___________ office of
the Trustee, located at ______________________________, Atten-
tion: __________________, and at such other places, if any,
designated by the Trustee, by any Certificateholder upon request.
Reference is hereby made to the further provisions 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 Trustee, by
manual signature, this Certificate shall not entitle the holder
hereof to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the
Trust, and not in its individual capacity, has caused this
Certificate to be duly executed.
NATIONSBANK AUTO GRANTOR TRUST
199_-_
By: _____________, as Trustee
By:
Authorized officer
DATED: ____________, __
Trustee's Certificate of
Authentication:
This is one of the [Class A] Certificates referred
to in the within-mentioned Agreement.
_____________, as Trustee
By:
Authorized Officer
[FORM OF REVERSE OF CERTIFICATE]
NATIONSBANK AUTO GRANTOR TRUST 199_-_
____% ASSET BACKED CERTIFICATE, [Class A]
The Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification
of the rights of the Certificateholders under the Agreement at
any time by the Sellers, the Servicer and the Trustee with the
consent of the Holders of Certificates evidencing not less
than a majority of the aggregate outstanding principal balance
of the [Class A] Certificates [and the Class B Certificates]
taken together as a single class. Any such consent by the
Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain circumstances,
without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certifi-
cate is registerable in the Certificate Register upon surren-
der of this Certificate for registration of transfer at the
office or agency maintained by the Trustee in the Borough of
Manhattan, the City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee
duly executed by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the desig-
nated transferee.
As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust, as requested by the
Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
The Sellers, the Servicer, the Trustee, and any
agent of the Sellers, the Servicer or the Trustee may treat
the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Sellers, the
Servicer, the Trustee, or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the
Agreement and the Trust created thereby will terminate upon
the earliest of (i) the Distribution Date immediately succeed-
ing the purchase by the Servicer, at its option, of the Re-
ceivables remaining in the Trust, as described below, (ii) the
payment to Certificateholders of all amounts required to be
paid to them pursuant to the Agreement, or (iii) the Distribu-
tion Date which is six months after the maturity or the liqui-
dation of the last Receivable held in the Trust and the dispo-
sition of any amounts received upon liquidation of any proper-
ty remaining in the Trust. The Agreement provides that the
Servicer may, at its option, purchase the Receivables remain-
ing in the Trust at a price equal to the aggregate Purchase
Amounts thereof, and such purchase of the Receivables will
effect early retirement of the Certificates; however, such
right of purchase is exercisable only after the first day of a
Collection Period as of which the Pool Balance is 5% or less
of the Initial Pool Balance.
Notwithstanding anything contained in the Agreement
to the contrary (i) the Agreement has been accepted by
_____________ not in its individual capacity but solely as
Trustee and as Collateral Agent with respect to the Reserve
Account and in no event shall _____________ have any liability
for the representations, warranties, covenants, agreements or
other obligations of the Sellers thereunder or in any of the
certificates, notices or agreements delivered pursuant there-
to, as to all of which recourse shall be had solely to the
assets of the Sellers and (ii) except in its capacity as
successor Servicer, under no circumstances shall _____________
be personally liable for the payment of any indebtedness or
expenses of the Trust.
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 typewrite 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 correspond
with the name as it appears upon the face of the within
Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must
be guaranteed by a member of the New York Stock Exchange
or a commercial bank or trust company.
EXHIBIT B
[FORM OF CLASS B CERTIFICATE]
NATIONSBANK AUTO GRANTOR TRUST 199_-_
____% ASSET BACKED CERTIFICATE, CLASS B
[Evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of retail
motor vehicle installment sales contracts and secured by the
new and used automobiles, vans and light-duty trucks financed
thereby and sold to the Trust by NationsBank, N.A.,
NationsBank, N.A. (South) and NationsBank of Texas, N.A.
[THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST
IN THE TRUST AND DOES NOT REPRESENT AN INTEREST IN OR OBLIGA-
TION OF NATIONSBANK, N.A., NATIONSBANK OF GEORGIA, N.A.,
NATIONSBANK OF FLORIDA, N.A. OR NATIONSBANK OF TEXAS, N.A. OR
ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE RECEIVABLES
ARE NOT DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMEN-
TAL AGENCY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRE-
SENTATIVE OF [THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPO-
RATION ("DTC")], TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY 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.
[THIS CERTIFICATE AND ANY BENEFICIAL INTEREST IN
THIS CERTIFICATE MAY NOT BE ACQUIRED BY (a) AN EMPLOYEE BENE-
FIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIRE-
MENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")), THAT
IS SUBJECT TO THE PROVISIONS OF TITLE 1 OF ERISA, (b) A PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), OR (c) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY (EACH A "BENEFIT PLAN") UNLESS AN
EXEMPTION FROM THE PROHIBITED TRANSACTION RULES APPLIES. BY
ACCEPTING AND HOLDING THIS CERTIFICATE OR AN INTEREST HEREIN,
THE HOLDER HEREOF OR OWNER HEREOF SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT EITHER (x) IT IS NOT A BENEFIT
PLAN OR (y) AN EXEMPTION FROM THE PROHIBITED TRANSACTION RULES
APPLIES SUCH THAT THE ACQUISITION AND SUBSEQUENT HOLDING OF
THE CLASS B CERTIFICATES OR AN INTEREST THEREIN WILL NOT
CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.]
CUSIP No.: ______________
$
Initial Principal
Amount
[THIS CERTIFIES THAT _________________ is the
registered owner of a _______________ dollars, nonassessable,
fully paid, fractional undivided interest in the NationsBank
Auto Grantor Trust 199_-_ (the "Trust") formed by NationsBank,
N.A., NationsBank, N.A. (South) and NationsBank of Texas,
N.A., each a national banking association (together, the
"Sellers"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of ________, ____ (as amended,
supplemented or otherwise modified and in effect from time to
time, the "Agreement") by and among the Sellers, NationsBank,
N.A., as servicer (in such capacity, the "Servicer"), and
_____________, as trustee (the "Trustee") and as collateral
agent, a summary of certain of the provisions of which is set
forth on the reverse hereof.
[To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to
them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "____% Asset Backed
Certificates, Class B" (herein called the "Certificates").
This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which the
Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The Trust Property
includes (as more fully described in the Agreement) a pool of
retail motor vehicle installment sales contracts (the "Receiv-
ables") for the purchase of new and used automobiles, vans and
light-duty trucks financed thereby (the "Financed Vehicles"),
certain monies received thereunder after the close of business
of the Servicer on _________, ____ (the "Cut-Off Date"), the
Sellers' security interests in the Financed Vehicles and all
proceeds of the foregoing.
[Subject to the terms and conditions of the Agree-
ment (including the availability of funds for distributions)
and until the obligations created by the Agreement shall have
terminated in accordance therewith, there will be distributed,
but only from funds on deposit in the Class B Distribution
Account, on the 15th day of each month or, if such 15th day is
not a Business Day, the next succeeding Business Day (each
such date, a "Distribution Date"), commencing _____________,
__, to the Person in whose name this Certificate is registered
at the close of business of the Trustee on the day immediately
preceding such Distribution Date (or, if Definitive Certifi-
cates are issued, the last day of the Collection Period imme-
diately preceding such Distribution Date) (the "Record Date"),
such Certificateholder's fractional undivided interest in the
amounts to be distributed to Class B Certificateholders pursu-
ant to the Agreement on such Distribution Date.
[Pursuant to the Agreement, distributions of inter-
est and principal on the Class B Certificates will be subordi-
nated in priority of payment to interest and principal due on
the Class A Certificates in the event of defaults and delin-
quencies on the Receivables. The Class B Certificateholders
will not receive any distributions of interest with respect to
a Collection Period until the full amount of interest on the
Class A Certificates relating to such Collection Period has
been deposited in the Class A Distribution Account, and the
Class B Certificateholders will not receive any distributions
of principal with respect to such Collection Period until the
full amount of interest on and principal of the Class A Cer-
tificates relating to such Collection Period has been deposit-
ed in the Class A Distribution Account as set forth in the
Agreement.
[Distributions on this Certificate will be made by
the Trustee by check mailed to the Certificateholder of record
at its address as it appears in the Certificate Register
without the presentation or surrender of this Certificate or
the making of any notation hereon, except that with respect to
a Certificate registered in the name of a Clearing Agency or
its nominee, distributions will be made by wire transfer of
immediately available funds. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distri-
bution on this Certificate will be made after due notice by
the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office
or agency maintained for that purpose by the Trustee in the
Borough of Manhattan, the City of New York.
[This Certificate does not purport to summarize the
Agreement and reference is hereby made to the Agreement for
information with respect to the rights, benefits, obligations
and duties evidenced thereby. A copy of the Agreement may be
examined during normal business hours at the _____________ of
the Trustee, located at ____________________________________,
Attention: ___________________ and at such other places, if
any, designated by the Trustee, by any Certificateholder upon
request.
[Reference is hereby made to the further provisions
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
Trustee, by manual signature, this Certificate shall not
entitle the holder hereof to any benefit under the Agreement
or be valid for any purpose.]
IN WITNESS WHEREOF, the Trustee, on behalf of the
Trust, and not in its individual capacity, has caused this
Certificate to be duly executed.
NATIONSBANK AUTO GRANTOR
TRUST 199_-_
By: _____________, as Trustee
By:
Authorized Officer
DATED: __________, 19__
Trustee's Certificate of
Authentication:
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
_____________, as Trustee
By:
Authorized Officer
[FORM OF REVERSE OF CERTIFICATE]
NATIONSBANK AUTO GRANTOR TRUST 199_-_
___% ASSET BACKED CERTIFICATE, CLASS B
[The Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification
of the rights of the Certificateholders under the Agreement at
any time by the Sellers, the Servicer and the Trustee with the
consent of the Holders of Certificates evidencing not less
than a majority of the aggregate outstanding principal balance
of the Class A Certificates and the Class B Certificates taken
together as a single class. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances,
without the consent of the Holders of any of the Certificates.
[As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certifi-
cate is registerable in the Certificate Register upon surren-
der of this Certificate for registration of transfer at the
office or agency maintained by the Trustee in the Borough of
Manhattan, the City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee
duly executed by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the desig-
nated transferee.
[As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust, as requested by the
Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
[The Sellers, the Servicer, the Trustee, and any
agent of the Sellers, the Servicer or the Trustee may treat
the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Sellers, the
Servicer, the Trustee, or any such agent shall be affected by
any notice to the contrary.
[The obligations and responsibilities created by the
Agreement and the Trust created thereby will terminate upon
the earliest of (i) the Distribution Date immediately succeed-
ing the purchase by the Servicer, at its option, of the Re-
ceivables remaining in the Trust, as described below, (ii) the
payment to Certificateholders of all amounts required to be
paid to them pursuant to the Agreement, or (iii) the Distribu-
tion Date which is six months after the maturity or the liqui-
dation of the last Receivable held in the Trust and the dispo-
sition of any amounts received upon liquidation of any proper-
ty remaining in the Trust. The Agreement provides that the
Servicer may, at its option, purchase the Receivables remain-
ing in the Trust at a price equal to the aggregate Purchase
Amounts thereof, and such purchase of the Receivables will
effect early retirement of the Certificates; however, such
right of purchase is exercisable only after the first day of a
Collection Period as of which the Pool Balance is 5% or less
of the Initial Pool Balance.
[Notwithstanding anything contained in the Agreement
to the contrary (i) the Agreement has been accepted by
_____________ not in its individual capacity but solely as
Trustee and as Collateral Agent with respect to the Reserve
Account and in no event shall _____________ have any liability
for the representations, warranties, covenants, agreements or
other obligations of the Sellers thereunder or in any of the
certificates, notices or agreements delivered pursuant there-
to, as to all of which recourse shall be had solely to the
assets of the Sellers and (ii) except in its capacity as
successor Servicer, under no circumstances shall _____________
be personally liable for the payment of any indebtedness or
expenses of the Trust.]
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 typewrite 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 correspond
with the name as it appears upon the face of the within
Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must
be guaranteed by a member of the New York Stock Exchange
or a commercial bank or trust company.
EXHIBIT C
[FORM OF SERVICER'S CERTIFICATE]
The undersigned certifies that he is a Servicing
Officer of NationsBank, N.A., a national banking association
organized under the laws of the United States (the
"Servicer"), and that as such s/he is duly authorized to
execute and deliver this certificate on behalf of the Servicer
pursuant to Section 3.9 of the Pooling and Servicing Agreement
dated as of __________, 1996 by and among NationsBank, N.A.,
NationsBank, N.A. (South) and NationsBank of Texas, N.A., as
sellers (the "Sellers"), the Servicer, and _____________, as
trustee (the "Trustee") of the NationsBank Auto Grantor Trust
199_-_ (the "Pooling and Servicing Agreement") (all capital-
ized terms used herein without definition have the respective
meanings specified in the Pooling and Servicing Agreement),
and further certifies that:
1. The Servicer report for the period from
____________ to __________ attached to this certificate is
complete and accurate and contains all information required by
Section 3.9 of the Pooling and Servicing Agreement; and
2. As of the date hereof, no Event of Servicing
Termination or event that with notice or lapse of time or both
would become an Event of Servicing Termination has occurred.
IN WITNESS WHEREOF, the undersigned has affixed
hereunto [her][his] signature this ____ day of ____________
19__.
NATIONSBANK, N.A.
By:
Name:
Title:
[FORM OF MONTHLY SERVICER REPORT]
EXHIBIT D
[FORM OF DEPOSITORY AGREEMENT]
TABLE OF CONTENTS
ARTICLE I
CREATION OF TRUST; CERTAIN
DEFINITIONS AND GENERAL PROVISIONS
SECTION 1.1. Creation of Trust . . . . . . . . . . . . . 1
SECTION 1.2 Definitions . . . . . . . . . . . . . . . . 1
SECTION 1.3 Usage of Terms . . . . . . . . . . . . . . . 1
SECTION 1.4. Calculations . . . . . . . . . . . . . . . . 1
SECTION 1.5. References . . . . . . . . . . . . . . . . . 2
SECTION 1.6. Section References . . . . . . . . . . . . . 2
SECTION 1.7. Action by or Consent of Certificateholders . 2
ARTICLE II
THE TRUST PROPERTY
SECTION 2.1. Conveyance of Trust Property . . . . . . . . 2
SECTION 2.2. Warranties of Each Seller as to Each
Receivable . . . . . . . . . . . . . . . . 3
SECTION 2.3. Warranties as to the Receivables in the Aggre-
gate and Actions of the Sellers . . . . . . 7
SECTION 2.4. Repurchase upon Breach . . . . . . . . . . . 8
SECTION 2.5. Custody of Receivable Files . . . . . . . . 9
SECTION 2.6. Duties of Servicer as Custodian . . . . . 10
SECTION 2.7. Instructions; Authority to Act . . . . . . 11
SECTION 2.8. Custodian's Indemnification . . . . . . . 11
SECTION 2.9. Effective Period and Termination . . . . . 12
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
SECTION 3.1. Duties of Servicer . . . . . . . . . . . . 13
SECTION 3.2. Collection of Receivable Payments; Credit De-
ferrals . . . . . . . . . . . . . . . . . 16
SECTION 3.3. Realization upon Receivables . . . . . . . 17
SECTION 3.4. Physical Damage Insurance . . . . . . . . 18
SECTION 3.5. Maintenance of Security Interests in Financed
Vehicles . . . . . . . . . . . . . . . . . 18
SECTION 3.6. Covenants of the Servicer . . . . . . . . 18
SECTION 3.7. Purchases by Servicer upon Breach . . . . 19
SECTION 3.8. Servicing Compensation . . . . . . . . . . 19
SECTION 3.9. Servicer's Report . . . . . . . . . . . . 20
SECTION 3.10. Annual Statement as to Compliance . . . . 20
SECTION 3.11. Independent Certified Public Accountants' Re-
ports . . . . . . . . . . . . . . . . . . 21
SECTION 3.12. Access to Certain Documentation and Information
Regarding Receivables . . . . . . . . . . 21
SECTION 3.13. Reports to the Commission . . . . . . . . 21
SECTION 3.14. Reports to the Rating Agencies . . . . . . 21
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.1. Establishment of Accounts . . . . . . . . 22
SECTION 4.2 Collections . . . . . . . . . . . . . . . . 25
SECTION 4.3 Advances; Other Deposits . . . . . . . . . . 26
SECTION 4.4 Net Deposits . . . . . . . . . . . . . . . . 27
SECTION 4.5 Distributions . . . . . . . . . . . . . . . 28
SECTION 4.6 Reserve Accounts . . . . . . . . . . . . . . 29
SECTION 4.7 Statements to Certificateholders . . . . . . 30
ARTICLE V
[Reserved]
ARTICLE VI
THE CERTIFICATES
SECTION 6.1. The Certificates . . . . . . . . . . . . . 32
SECTION 6.2. Authentication of Certificates . . . . . . 32
SECTION 6.3. Registration of Transfer and Exchange of Cer-
tificates . . . . . . . . . . . . . . . . 32
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certifi-
cates . . . . . . . . . . . . . . . . . . 33
SECTION 6.5. Persons Deemed Owners . . . . . . . . . . 33
SECTION 6.6. Access to List of Certificateholders' Names and
Addresses . . . . . . . . . . . . . . . . 34
SECTION 6.7. Maintenance of Office or Agency . . . . . 34
SECTION 6.8. Book-Entry Certificates . . . . . . . . . 34
SECTION 6.9. Notices to Clearing Agency . . . . . . . . 35
SECTION 6.10. Definitive Certificates . . . . . . . . . 36
ARTICLE VII
THE SELLERS
SECTION 7.1. Representations and Warranties of the Sellers
37
SECTION 7.2. Liability of Sellers; Indemnities . . . . 38
SECTION 7.3. Merger or Consolidation of the Sellers . . 39
SECTION 7.4. Limitation on Liability of Sellers and Others
40
SECTION 7.5. Sellers May Own Certificates . . . . . . . 40
ARTICLE VIII
THE SERVICER
SECTION 8.1. Representations and Warranties of Servicer 41
SECTION 8.2. Liability of Servicer; Indemnities . . . . 42
SECTION 8.3. Merger or Consolidation of the Servicer . 44
SECTION 8.4. Limitation on Liability of Servicer and Others
44
SECTION 8.5. Servicer Not to Resign . . . . . . . . . . 44
SECTION 8.6. Servicer May Own Certificates . . . . . . 44
ARTICLE IX
SERVICING TERMINATION
SECTION 9.1. Events of Servicing Termination . . . . . 46
SECTION 9.2. Trustee to Act; Appointment of Successor
Servicer . . . . . . . . . . . . . . . . . 48
SECTION 9.3. Effect of Servicing Transfer . . . . . . . 48
SECTION 9.4. Notification to Certificateholders . . . . 49
SECTION 9.5. Waiver of Past Events of Servicing Termination
49
SECTION 9.6. Transfer of Accounts . . . . . . . . . . . 50
ARTICLE X
THE TRUSTEE
SECTION 10.1. Acceptance by Trustee . . . . . . . . . . 51
SECTION 10.2. Duties of Trustee . . . . . . . . . . . . 51
SECTION 10.3. Trustee's Certificate . . . . . . . . . . 53
SECTION 10.4. Trustee's Assignment of Purchased Receivables
53
SECTION 10.5. Certain Matters Affecting the Trustee . . 54
SECTION 10.6. Trustee Not Liable for Certificates or Receiv-
ables . . . . . . . . . . . . . . . . . . 56
SECTION 10.7. Trustee May Own Certificates . . . . . . . 57
SECTION 10.8. Trustee's Fees and Expenses . . . . . . . 57
SECTION 10.9. Trustee May Enforce Claims Without Possession
of Certificates . . . . . . . . . . . . . 58
SECTION 10.10. Eligibility Requirements for Trustee . . . 58
SECTION 10.11. Resignation or Removal of Trustee . . . . 58
SECTION 10.12. Successor Trustee . . . . . . . . . . . . 59
SECTION 10.13. Merger or Consolidation of Trustee . . . . 60
SECTION 10.14. Appointment of Co-Trustee or Separate Trustee
60
SECTION 10.15. Representations and Warranties of Trustee 62
SECTION 10.16. Reports by Trustee . . . . . . . . . . . . 62
SECTION 10.17. Tax Accounting . . . . . . . . . . . . . . 62
ARTICLE XI
TERMINATION
SECTION 11.1. Termination of the Trust . . . . . . . . . 64
SECTION 11.2. Optional Purchase of All Receivables . . . 65
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Amendment . . . . . . . . . . . . . . . . 66
SECTION 12.2. Protection of Title to Trust . . . . . . . 67
SECTION 12.3. Limitation on Rights of Certificateholders 68
SECTION 12.4. Governing Law . . . . . . . . . . . . . . 69
SECTION 12.5. Notices . . . . . . . . . . . . . . . . . 69
SECTION 12.6. Severability of Provisions . . . . . . . . 70
SECTION 12.7. Assignment . . . . . . . . . . . . . . . . 70
SECTION 12.8. Certificates Nonassessable and Fully Paid 70
SECTION 12.9. Intention of Parties . . . . . . . . . . . 70
SECTION 12.10. Counterparts . . . . . . . . . . . . . . . 71
SECTION 12.11. Limitation of Liability of the Trustee . . 71