Exhibit 4.1
INDENTURE
between
NATIONSBANK AUTO OWNER TRUST ____-_,
as Issuer
and
_________________________________________,
as Indenture Trustee
Dated as of ________ __, ____
CROSS REFERENCE TABLE1
TIA Indenture
Section Section
310 (a)(1) . . . . . . . . . . . . . . . . . . . 6.11
(a)(2) . . . . . . . . . . . . . . . . . . . 6.11
(a)(3) . . . . . . . . . . . . . . . . . . . 6.10
(a)(4) . . . . . . . . . . . . . . . . . . N.A.2
(a)(5) . . . . . . . . . . . . . . . . . . . 6.11
(b) . . . . . . . . . . . . . . . . . . 6.8;6.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . 6.12
(b) . . . . . . . . . . . . . . . . . . . . 6.12
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . 7.2
(d) . . . . . . . . . . . . . . . . . . . . 7.4
313 (a) . . . . . . . . . . . . . . . . . . . . 7.4
(b)(1) . . . . . . . . . . . . . . . . . . . 7.4
(b)(2) . . . . . . . . . . . . . . . . . . . 11.5
(c) . . . . . . . . . . . . . . . . . . . . 7.4
(d) . . . . . . . . . . . . . . . . . . . . 7.3
314 (a) . . . . . . . . . . . . . . . . . . . . 11.15
(b) . . . . . . . . . . . . . . . . . . . . 11.1
(c)(1) . . . . . . . . . . . . . . . . . . . 11.1
(c)(2) . . . . . . . . . . . . . . . . . . . 11.1
(c)(3) . . . . . . . . . . . . . . . . . . . 11.1
(d) . . . . . . . . . . . . . . . . . . . . 11.1
(e) . . . . . . . . . . . . . . . . . . . . 11.1
(f) . . . . . . . . . . . . . . . . . . . . 11.1
315 (a) . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . 6.5;11.5
(c) . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . 5.13
316 (a) (last sentence) . . . . . . . . . . . . . 2.8
(a)(1)(A) . . . . . . . . . . . . . . . . . . 5.11
(a)(1)(B) . . . . . . . . . . . . . . . . . . 5.12
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . N.A
317 (a)(1) . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . 5.3
(b) . . . . . . . . . . . . . . . . . . . . 3.3
318 (a) . . . . . . . . . . . . . . . . . . . . 11.7
_______________________
1 Note: This Cross Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE 3
SECTION 1.1. Definitions and Usage . . . . . . . 3
SECTION 1.2. Incorporation by Reference of Trust In-
denture Act . . . . . . . . . . . . 3
ARTICLE II
THE NOTES
SECTION 2.1. Form . . . . . . . . . . . . . . . . 4
SECTION 2.2. Execution, Authentication and Delivery
4
SECTION 2.3. Temporary Notes . . . . . . . . . . 5
SECTION 2.4. Tax Treatment . . . . . . . . . . . 6
SECTION 2.5. Registration; Registration of Transfer
and Exchange . . . . . . . . . . . . 6
SECTION 2.6. Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . 8
SECTION 2.7. Persons Deemed Owners . . . . . . . 9
SECTION 2.8. Payment of Principal and Interest;
Defaulted Interest . . . . . . . . . 9
SECTION 2.9. Cancellation . . . . . . . . . . . . 10
SECTION 2.10. Release of Collateral . . . . . . . 11
SECTION 2.11. Book-Entry Notes . . . . . . . . . . 11
SECTION 2.12. Notices to Clearing Agency . . . . . 13
SECTION 2.13. Definitive Notes . . . . . . . . . . 13
SECTION 2.14. Authenticating Agents . . . . . . . 13
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest . 15
SECTION 3.2. Maintenance of Office or Agency . . 15
SECTION 3.3. Money for Payments To Be Held in Trust
15
SECTION 3.4. Existence . . . . . . . . . . . . . 18
SECTION 3.5. Protection of Indenture Trust Estate 18
SECTION 3.6. Opinions as to Indenture Trust Estate
19
SECTION 3.7. Performance of Obligations;
Servicing of Receivables . . . . . . 19
SECTION 3.8. Negative Covenants . . . . . . . . . 22
SECTION 3.9. Annual Statement as to Compliance . 23
SECTION 3.10. Issuer May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . 24
SECTION 3.11. Successor of Transferee . . . . . . 26
SECTION 3.12. No Other Business . . . . . . . . . 27
SECTION 3.13. No Borrowing . . . . . . . . . . . . 27
SECTION 3.14. Servicer's Obligations . . . . . . . 27
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities . . . . . . . . . . . . 27
SECTION 3.16. Capital Expenditures . . . . . . . . 27
SECTION 3.17. Further Instruments and Acts . . . . 27
SECTION 3.18. Restricted Payments . . . . . . . . 28
SECTION 3.19. Notice of Events of Default . . . . 28
SECTION 3.20. Removal of Administrator . . . . . . 28
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture
29
SECTION 4.2. Satisfaction, Discharge and Defeasance
of Notes . . . . . . . . . . . . . . 30
SECTION 4.3. Application of Trust Money . . . . . 32
SECTION 4.4. Repayment of Monies Held by Note Paying
Agent . . . . . . . . . . . . . . . 32
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . 33
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . 35
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee . . 36
SECTION 5.4. Remedies; Priorities . . . . . . . . 39
SECTION 5.5. Optional Preservation of the Receivables
41
SECTION 5.6. Limitation of Suits . . . . . . . . 41
SECTION 5.7. Unconditional Rights of Noteholders To
Receive Principal and Interest . . . 42
SECTION 5.8. Restoration of Rights and Remedies . 43
SECTION 5.9. Rights and Remedies Cumulative . . . 43
SECTION 5.10. Delay or Omission Not a Waiver . . . 43
SECTION 5.11. Control by Noteholders . . . . . . . 43
SECTION 5.12. Waiver of Past Defaults . . . . . . 44
SECTION 5.13. Undertaking for Costs . . . . . . . 45
SECTION 5.14. Waiver of Stay or Extension Laws . . 45
SECTION 5.15. Action on Notes . . . . . . . . . . 46
SECTION 5.16. Performance and Enforcement of Certain
Obligations . . . . . . . . . . . . 46
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of Indenture Trustee . . . . 48
SECTION 6.2. Rights of Indenture Trustee . . . . 49
SECTION 6.3. Individual Rights of Indenture Trustee
50
SECTION 6.4. Indenture Trustee's Disclaimer . . . 50
SECTION 6.5. Notice of Defaults; Insolvency or
Dissolution of Depositor or General
Partner . . . . . . . . . . . . . . 51
SECTION 6.6. Reports by Indenture Trustee to
Noteholders . . . . . . . . . . . . 52
SECTION 6.7. Compensation and Indemnity . . . . . 52
SECTION 6.8. Replacement of Indenture Trustee . . 53
SECTION 6.9. Successor Indenture Trustee by Merger
54
SECTION 6.10. Appointment of Co-Indenture Trustee or
Separate Indenture Trustee . . . . . 55
SECTION 6.11. Eligibility; Disqualification . . . 57
SECTION 6.12. Preferential Collection of
Claims Against Issuer . . . . . . . 57
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee
Names
and Addresses of Noteholders . . . . 58
SECTION 7.2. Preservation of Information;
Communications to Noteholders . . . 58
SECTION 7.3. Reports by Issuer . . . . . . . . . 59
SECTION 7.4. Reports by Indenture Trustee . . . . 59
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES . . . 61
SECTION 8.1. Collection of Money . . . . . . . . 61
SECTION 8.2. Trust Accounts, the Reserve Account and
the
Yield Supplement Account . . . . . . 61
SECTION 8.3. General Provisions Regarding Accounts
63
SECTION 8.4. Release of Indenture Trust Estate . 64
SECTION 8.5. Opinion of Counsel . . . . . . . . . 65
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . 66
SECTION 9.1. Supplemental Indentures Without
Consent of Noteholders . . . . . . . 66
SECTION 9.2. Supplemental Indentures with
Consent of Noteholders . . . . . . . 68
SECTION 9.3. Execution of Supplemental Indentures 70
SECTION 9.4. Effect of Supplemental Indenture . . 71
SECTION 9.5. Conformity with Trust Indenture Act 71
SECTION 9.6. Reference in Notes to Supplemental In-
dentures . . . . . . . . . . . . . . 71
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption . . . . . . . . . . . . . 72
SECTION 10.2. Form of Redemption Notice . . . . . 72
SECTION 10.3. Notes Payable on Redemption Date . . 73
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions,
etc. . . . . . . . . . . . . . . . . 74
SECTION 11.2. Form of Documents Delivered to Indenture
Trustee . . . . . . . . . . . . . . 76
SECTION 11.3. Acts of Noteholders . . . . . . . . 77
SECTION 11.4. Notices, etc., to Indenture Trustee,
Issuer and Rating
Agencies . . . . . . . . . . . . . . 78
SECTION 11.5. Notices to Noteholders; Waiver . . . 79
SECTION 11.6. Alternate Payment and Notice Provisions
80
SECTION 11.7. Conflict with Trust Indenture Act . 80
SECTION 11.8. Effect of Headings and Table of Contents
81
SECTION 11.9. Successors and Assigns . . . . . . . 81
SECTION 11.10. Separability . . . . . . . . . . . . 81
SECTION 11.11. Benefits of Indenture . . . . . . . 81
SECTION 11.12. Legal Holiday . . . . . . . . . . . 81
SECTION 11.13. Governing Law . . . . . . . . . . . 81
SECTION 11.14. Counterparts . . . . . . . . . . . . 82
SECTION 11.15. Recording of Indenture . . . . . . . 82
SECTION 11.16. Trust Obligation . . . . . . . . . . 82
SECTION 11.17. No Petition . . . . . . . . . . . . 83
SECTION 11.18. Inspection . . . . . . . . . . . . . 83
EXHIBIT A-1 Form of Class A-1 Note . . . . . A-1-1
[EXHIBIT A-2 Form of Class A-2 Note . . . . . A-2-1]
[EXHIBIT A-3 Form of Class A-3 Note . . . . . A-3-1]
[EXHIBIT B Form of Note Depository Agree-
ment . . . . . . . . . . . . . . . . . . . . . . . B-1]
SCHEDULE A Schedule of Receivables . . . . . SA-1
APPENDIX A Definitions and Usage . . . . . . AA-1
INDENTURE, dated as of _________ __, ____, (as
from time to time amended, supplemented or otherwise
modified and in effect, this "Indenture") between
NATIONSBANK AUTO OWNER TRUST ____-_, a Delaware business
trust (the "Issuer"), and
_________________________________________, a ________
banking corporation, as trustee and not in its individual
capacity (in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of
the holders of the Issuer's [Class A-1] ____% Asset
Backed Notes (the ["Class A-1 Notes"), Class A-2 _____%
Asset Backed Notes (the "Class A-2 Notes") and Class A-3
___% Asset Backed Notes (the "Class A-3 Notes" and,
together with the Class A-1 Notes and the Class A-2
Notes, the] "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture
Trustee at the Closing Date, as Indenture Trustee for the
benefit of the Noteholders, all of the Issuer's right,
title and interest in, to and under, whether now owned or
existing or hereafter acquired or arising in (a) all of
the Issuer's accounts (as defined in the UCC); (b) all of
the Issuer's chattel paper (as defined in the UCC); (c)
all of the Issuer's general intangibles (as defined in
the UCC), [including without limitation, any of the
Issuer's personal property (including choses-in-action)
other than goods, accounts, chattel paper, documents,
instruments, and money (with each such term having the
definition given in the UCC)]; (d) all of the Issuer's
instruments, documents, goods and inventory (as each such
term is defined in the UCC); (e) the Receivables and the
other Owner Trust Property; and (f) all present and
future claims, demands, causes of action and choses in
action in respect of any or all of the foregoing and all
payments on or under, and all proceeds of every kind and
nature whatsoever in respect of any or all of the forego-
ing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of
obligations and receivables, instruments and other prop-
erty which at any time constitute all or part of or are
included in the proceeds of any of the foregoing (collec-
tively, the "Collateral"), it being understood that
nothing described heretofore or represented by the Col-
lateral shall include the property or proceeds (or rights
thereto) contained in or rerpresented by the Certificate
Distribution Account.
The foregoing Grant is made in trust to secure
the payment of principal of and interest on, and any
other amounts owing in respect of, the Notes, equally and
ratably without prejudice, priority or distinction, and
to secure compliance with the provisions of this Inden-
ture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on
behalf of the Noteholders, acknowledges such Grant,
accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the best
of its ability to the end that the interests of the
Noteholders may be adequately and effectively protected.
ARTICLE I.
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions and Usage. Except as
otherwise specified herein or as the context may other-
wise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which
also contains rules as to usage that shall be applicable
herein.
SECTION 1.2. Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the
following meanings:
"indenture securities" shall mean the Notes.
"indenture security holder" shall mean a
Noteholder.
"indenture to be qualified" shall mean this
Indenture.
"indenture trustee" or "institutional trustee"
shall mean the Indenture Trustee.
"obligor" on the indenture securities shall
mean the Issuer and any other obligor on the indenture
securities.
All other TIA terms used in this Indenture that
are defined in the TIA, defined by TIA reference to
another statute or defined by Commission rule have the
meaning assigned to them by such definitions.
End of Article I
ARTICLE II.
THE NOTES
SECTION 2.1. Form. (a) The [Class A-1] Notes,
[the Class A-2 Notes and the Class A-3 Notes,] together
with the Indenture Trustee's certificates of authentica-
tion, shall be in substantially the form set forth in
Exhibit A-1, [Exhibit A-2 and Exhibit A-3, respectively,]
with such appropriate insertions, omissions, substitu-
tions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or en-
dorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as
evidenced by their execution thereof. Any portion of the
text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the
Note.
(b) The definitive Notes shall be typewritten,
printed, lithographed or engraved or produced by any
combination of these methods (with or without steel
engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of
such Notes.
(c) Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in
Exhibit A-1[, Exhibit A-2 and Exhibit A-3] are part of
the terms of this Indenture and are incorporated herein
by reference.
SECTION 2.2. Execution, Authentication and
Delivery. (a) The Notes shall be executed on behalf of
the Issuer by any of its Authorized Officers. The signa-
ture of any such Authorized Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile
signature of individuals who were at any time Authorized
Officers of the Issuer shall bind the Issuer, notwith-
standing that such individuals or any of them have ceased
to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at
the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer
Order, authenticate and deliver [Class A-1] Notes for
original issue in an aggregate principal amount of
$___________[, Class A-2 Notes for original issue in an
aggregate principal amount of $______ and Class A-3 Notes
for original issue in an aggregate principal amount of
$___________.] The aggregate principal amount of [Class
A-1] Notes[, Class A-2 Notes and Class A-3 Notes] out-
standing at any time may not exceed each respective
amount except as provided in Section 2.6.
(d) Each Note shall be dated the date of its
authentication. The Notes [of the same Class] shall be
issuable as registered Notes in minimum denominations of
$1,000 and in integral multiples of $1,000 in excess
thereof.
(e) No Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for
herein executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such
certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes. (a) Pending the
preparation of definitive Notes, the Issuer may execute,
and upon receipt of an Issuer Order the Indenture Trustee
shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the definitive Notes
in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the
officers executing the temporary Notes may determine, as
evidenced by their execution of such temporary Notes.
If temporary Notes are issued, the Issuer shall
cause definitive Notes to be prepared without unreason-
able delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office
or agency of the Issuer to be maintained as provided in
Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute, and the Indenture Trust-
ee shall authenticate and deliver in exchange therefor, a
like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits
under this Indenture as definitive Notes.
SECTION 2.4. Tax Treatment. The Issuer has
entered into this Indenture, and the Notes shall be
issued, with the intention that, for federal, state and
local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the
Indenture Trust Estate. The Issuer, by entering into
this Indenture, and each Noteholder, by its acceptance of
a Note (and each Note Owner by its acceptance of an
interest in the applicable Book-Entry Note), agree to
treat the Notes for federal, state and local income and
franchise tax purposes as indebtedness of the Issuer.
SECTION 2.5. Registration; Registration of
Transfer and Exchange. (a) The Issuer shall cause to be
kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and
the registration of transfers of Notes. The Indenture
Trustee initially shall be the "Note Registrar" for the
purpose of registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Note Regis-
trar, the Issuer shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the
duties of Note Registrar.
(b) If a Person other than the Indenture Trust-
ee is appointed by the Issuer as Note Registrar, (i) the
Issuer shall give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note
Register, (ii) the Indenture Trustee shall have the right
to inspect the Note Register at all reasonable times and
to obtain copies thereof, and (iii) the Indenture Trustee
shall have the right to rely upon a certificate executed
on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders
and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer
of any Note at the office or agency of the Issuer to be
maintained as provided in Section 3.2, if the require-
ments of Section 8-401(l) of the UCC are met the Issuer
shall execute, and the Indenture Trustee shall authenti-
cate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in
any authorized denomination, of a like aggregate princi-
pal amount.
(d) At the option of the Noteholder, Notes may
be exchanged for other Notes of the same Class in any
authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surren-
dered for exchange, if the requirements of Section 8-
401(l) of the UCC are met, the Issuer shall execute, the
Indenture Trustee shall authenticate, and the Noteholder
shall obtain from the Indenture Trustee, the Notes which
the Noteholder making such exchange is entitled to re-
ceive.
(e) All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obliga-
tions of the Issuer, evidencing the same debt, and enti-
tled to the same benefits under this Indenture as the
Notes surrendered upon such registration of transfer or
exchange.
(f) Every Note presented or surrendered for
registration of transfer or exchange shall be duly en-
dorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder thereof or such
Noteholder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Regis-
trar.
(g) No service charge shall be made to a
Noteholder for any registration of transfer or exchange
of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration
of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.3 or 9.6 not involving any trans-
fer.
(h) The preceding provisions of this Section
2.5 notwithstanding, the Issuer shall not be required to
make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption or of any
Note for a period of fifteen (15) days preceding the
Distribution Date for any payment with respect to such
Note.
SECTION 2.6. Mutilated, Destroyed, Lost or
Stolen Notes. (a) If (i) any mutilated Note is surren-
dered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may
be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that
such Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the
UCC are met, the Issuer shall execute, and upon its
request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilat-
ed, destroyed, lost or stolen Note, a replacement Note
[of the same Class]; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note,
shall have become, or within seven (7) days shall be, due
and payable, or shall have been called for redemption,
instead of issuing a replacement Note, the Issuer may pay
such destroyed, lost or stolen Note when so due or pay-
able or upon the Redemption Date without surrender there-
of. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide pur-
chaser of the original Note in lieu of which such re-
placement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall
be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any
Person taking such replacement Note from such Person to
whom such replacement Note was delivered or any assignee
of such Person, except a bona fide purchaser, and shall
be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trust-
ee in connection therewith.
(b) Upon the issuance of any replacement Note
under this Section 2.6, the Issuer may require the pay-
ment by the Noteholder of such Note of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Inden-
ture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to
this Section 2.6 in replacement of any mutilated, de-
stroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly
issued hereunder.
(d) The provisions of this Section 2.6 are
exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7. Persons Deemed Owners. Prior to
due presentment for registration of transfer of any Note,
the Issuer, the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of
determination) as the owner of such Note for the purpose
of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the
Issuer, the Indenture Trustee or any agent of the Issuer
or the Indenture Trustee shall be affected by notice to
the contrary.
SECTION 2.8. Payment of Principal and Interest;
Defaulted Interest. (a) The Class [A-1] Notes[, the
Class A-2 Notes and the Class A-3 Notes] shall accrue
interest at the Class[ A-1] Rate[, the Class A-2 Rate and
the Class A-3 Rate, respectively,] as set forth in Exhib-
it A-1[, Exhibit A-2 and Exhibit A-3, respectively,] and
such interest shall be payable on each Distribution Date
as specified therein, subject to Section 3.1. Any in-
stallment of interest or principal, if any, payable on
any Note that is punctually paid or duly provided for by
the Issuer on the applicable Distribution Date shall be
paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered on the Record Date
[by check mailed first-class postage prepaid to such
Person's address as it appears on the Note Register on
such Record Date]; provided that, unless Definitive Notes
have been issued pursuant to Section 2.13, with respect
to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment shall be made by wire transfer
in immediately available funds to the account designated
by such nominee, and except for the final installment of
principal payable with respect to such Note on a Distri-
bution Date, Redemption Date or the applicable Final
Scheduled Distribution Date, which shall be payable as
provided below. The funds represented by any such checks
returned undelivered shall be held in accordance with
Section 3.3.
(b) The principal of each Note shall be payable
in installments on each Distribution Date as provided in
the forms of Notes set forth in Exhibit A-1[, Exhibit A-2
and Exhibit A-3] hereto. Notwithstanding the foregoing,
the entire unpaid principal amount of each Class of Notes
shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and
be continuing, if the Indenture Trustee or the
Noteholders of Notes evidencing not less than a majority
of the principal amount of the Notes Outstanding have
declared the Notes to be immediately due and payable in
the manner provided in Section 5.2. All principal pay-
ments on each Class of Notes shall be made pro rata to
the Noteholders of such Class entitled thereto. The
Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record
Date preceding the Distribution Date on which the Issuer
expects that the final installment of principal of and
interest on such Note shall be paid. Such notice shall
be mailed or transmitted by facsimile prior to such final
Distribution Date and shall specify that such final
installment shall be payable only upon presentation and
surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of
such installment. Notices in connection with redemption
of Notes shall be mailed to Noteholders as provided in
Section 10.2.
(c) If the Issuer defaults in a payment of
interest on the Notes, the Issuer shall pay defaulted
interest (plus interest on such defaulted interest to the
extent lawful) at the applicable Note Interest Rate on
the Distribution Date following such default. The Issuer
shall pay such defaulted interest to the Persons who are
Noteholders on the Record Date for such following Distri-
bution Date.
SECTION 2.9. Cancellation. All Notes surren-
dered for payment, registration of transfer, exchange or
redemption shall, if surrendered to any Person other than
the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly cancelled by the Indenture
Trustee. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer
may have acquired in any manner whatsoever, and all Notes
so delivered shall be promptly cancelled by the Indenture
Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes cancelled as provided in this
Section 2.9, except as expressly permitted by this Inden-
ture. All cancelled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time
unless the Issuer shall direct by an Issuer Order that
they be destroyed or returned to it and so long as such
Issuer Order is timely and the Notes have not been previ-
ously disposed of by the Indenture Trustee.
SECTION 2.10. Release of Collateral. Subject to
Section 11.1 and the terms of the Basic Documents, the
Indenture Trustee shall release property from the lien of
this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of
Counsel and Independent Certificates in accordance with
TIA Sections 314(c) and 314(d)(1) or an Opinion of Coun-
sel in lieu of such Independent Certificates to the
effect that the TIA does not require any such Independent
Certificates. If the Commission shall issue an exemptive
order under TIA Section 304(d) modifying the Owner
Trustee's obligations under TIA Sections 314(c) and
314(d)(1), subject to Section 11.1 and the terms of the
Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture in accordance
with the conditions and procedures set forth in such
exemptive order.
SECTION 2.11. Book-Entry Notes. The Notes, upon
original issuance, shall be issued in the form of type-
written Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Issuer. The
Book-Entry Notes shall be registered initially on the
Note Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no Note Owner thereof
shall receive a Definitive Note (as defined below) repre-
senting such Note Owner's interest in such Note, except
as provided in Section 2.13. Unless and until defini-
tive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section
2.13:
(i) the provisions of this Section 2.11
shall be in full force and effect;
(ii) the Note Registrar and the Indenture
Trustee shall be entitled to deal with the
Clearing Agency for all purposes of this Inden-
ture (including the payment of principal of and
interest on the Notes and the giving of in-
structions or directions hereunder) as the sole
Noteholder, and shall have no obligation to the
Note Owners;
(iii) to the extent that the provisions of
this Section 2.11 conflict with any other pro-
visions of this Indenture, the provisions of
this Section 2.11 shall control;
(iv) the rights of Note Owners shall be
exercised only through the Clearing Agency and
shall be limited to those established by law
and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency
Participants pursuant to the Note Depository
Agreement. Unless and until Definitive Notes
are issued pursuant to Section 2.13, the ini-
tial Clearing Agency shall make book-entry
transfers among the Clearing Agency Partici-
pants and receive and transmit payments of
principal of and interest on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or
permits actions to be taken based upon instruc-
tions or directions of Noteholders of Notes
evidencing a specified percentage of the prin-
cipal amount of the Notes Outstanding, the
Clearing Agency shall be deemed to represent
such percentage only to the extent that it has
received instructions to such effect from Note
Owners and/or Clearing Agency Participants
owning or representing, respectively, such
required percentage of the beneficial interest
in the Notes Outstanding and has delivered such
instructions to the Indenture Trustee.
SECTION 2.12. Notices to Clearing Agency. When-
ever a notice or other communication to the Noteholders
is required under this Indenture, unless and until Defin-
itive Notes shall have been issued to the Note Owners
pursuant to Section 2.13, the Indenture Trustee shall
give all such notices and communications specified herein
to be given to Noteholders to the Clearing Agency, and
shall have no obligation to such Note Owners.
SECTION 2.13. Definitive Notes. If (i) the
Administrator advises the Indenture Trustee in writing
that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to
the Notes and the Indenture Trustee or the Administrator
is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Indenture
Trustee in writing that it elects to terminate the book-
entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default or an Event of
Servicing Termination, Note Owners of Notes evidencing
beneficial interests aggregating not less than a majority
of the principal amount of the Notes Outstanding advise
the Indenture Trustee and the Clearing Agency in writing
that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the
Note Owners, then the Clearing Agency shall notify all
Note Owners and the Indenture Trustee of the occurrence
of such event and of the availability of Definitive Notes
to Note Owners requesting the same. Upon surrender to
the Indenture Trustee of the typewritten Notes represent-
ing the Book-Entry Notes by the Clearing Agency, accompa-
nied by registration instructions, the Issuer shall
execute and the Indenture Trustee shall authenticate the
Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Regis-
trar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclu-
sively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the holders
of the Definitive Notes as Noteholders.
SECTION 2.14. Authenticating Agents. (a) The
Indenture Trustee may appoint one or more Persons (each,
an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication
of Notes in connection with issuance, transfers and
exchanges under Sections 2.2, 2.3, 2.5 and 2.6, as fully
to all intents and purposes as though each such Authenti-
cating Agent had been expressly authorized by those
Sections to authenticate such Notes. For all purposes of
this Indenture, the authentication of Notes by an Authen-
ticating Agent pursuant to this Section 2.14 shall be
deemed to be the authentication of Notes "by the Inden-
ture Trustee."
(b) Any corporation into which any Authenticat-
ing Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Authen-
ticating Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate
trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without
the execution or filing of any further act on the part of
the parties hereto or such Authenticating Agent or such
successor corporation.
(c) Any Authenticating Agent may at any time
resign by giving written notice of resignation to the
Indenture Trustee and the Owner Trustee. The Indenture
Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termina-
tion to such Authenticating Agent and the Owner Trustee.
Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a succes-
sor Authenticating Agent and shall give written notice of
any such appointment to the Owner Trustee.
(d) The Administrator agrees to pay to each
Authenticating Agent from time to time reasonable compen-
sation for its services. The provisions of Sections 2.9
and 6.4 shall be applicable to any Authenticating Agent.
End of Article II
ARTICLE III.
COVENANTS
SECTION 3.1. Payment of Principal and Interest.
The Issuer shall duly and punctually pay the principal of
and interest, if any, on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting
the foregoing, the Issuer shall cause to be paid all
amounts on deposit in the Note Payment Account on a
Distribution Date deposited therein pursuant to the Sale
and Servicing Agreement (i) for the benefit of the Class
[A-1] Notes, to the Class [A-1] Noteholders, (ii) for the
benefit of the Class [A-2] Notes, to the Class [A-2]
Noteholders, and (iii) for the benefit of the Class [A-3]
Notes, to the Class [A-3] Noteholders. Amounts properly
withheld under the Code by any Person from a payment to
any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan,
The City of New York, an office or agency where Notes may
be surrendered for registration of transfer or exchange,
and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served.
The Issuer hereby initially appoints the Indenture Trust-
ee to serve as its agent for the foregoing purposes. The
Issuer shall give prompt written notice to the Indenture
Trustee of the location, and of any change in the loca-
tion, of any such office or agency. If, at any time, the
Issuer shall fail to maintain any such office or agency
or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may
be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in
Trust. (a) As provided in Section 8.2, all payments of
amounts due and payable with respect to any Notes that
are to be made from amounts withdrawn from the Collection
Account[, the Reserve Account] and the Note Payment
Account shall be made on behalf of the Issuer by the
Indenture Trustee or by another Note Paying Agent, and no
amounts so withdrawn from the Collection Account[, the
Reserve Account] and the Note Payment Account for pay-
ments of Notes shall be paid over to the Issuer, except
as provided in this Section 3.3.
(b) On or before each Distribution Date and
Redemption Date, the Issuer shall deposit or cause to be
deposited in the Note Payment Account an aggregate sum
sufficient to pay the amounts then becoming due under the
Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto, and (unless the Note Paying
Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure so to act.
(c) The Issuer shall cause each Note Paying
Agent other than the Indenture Trustee to execute and
deliver to the Indenture Trustee an instrument in which
such Note Paying Agent shall agree with the Indenture
Trustee (and if the Indenture Trustee acts as Note Paying
Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Note Paying Agent shall:
(i) hold all sums held by it for the
payment of amounts due with respect to the
Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as
herein provided and pay such sums to such Per-
sons as herein provided;
(ii) give the Indenture Trustee notice of
any default by the Issuer (or any other obligor
upon the Notes) of which it has actual knowl-
edge in the making of any payment required to
be made with respect to the Notes;
(iii) at any time during the continuance
of any such default, upon the written request
of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by
such Note Paying Agent;
(iv) immediately resign as a Note Paying
Agent and forthwith pay to the Indenture Trust-
ee all sums held by it in trust for the payment
of Notes if at any time it ceases to meet the
standards required to be met by a Note Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the
Code and any state or local tax law with re-
spect to the withholding from any payments made
by it on any Notes of any applicable withhold-
ing taxes imposed thereon and with respect to
any applicable reporting requirements in con-
nection therewith.
(d) The Issuer may at any time, for the purpose
of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, by Issuer Order
direct any Note Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Note Paying Agent,
such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by
such Note Paying Agent; and upon such payment by any Note
Paying Agent to the Indenture Trustee, such Note Paying
Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to
escheat of funds, any money held by the Indenture Trustee
or any Note Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining un-
claimed for two (2) years after such amount has become
due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request; and the
Noteholder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment
thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee
or such Note Paying Agent with respect to such trust
money shall thereupon cease; provided, however, that the
Indenture Trustee or such Note Paying Agent, before being
required to make any such repayment, shall at the expense
and direction of the Issuer cause to be published once,
in a newspaper published in the English language, custom-
arily published on each Business Day and of general
circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days
from the date of such publication, any unclaimed balance
of such money then remaining shall be repaid to the
Issuer. The Indenture Trustee shall also adopt and
employ, at the expense and direction of the Issuer, any
other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such
repayment to Noteholders whose Notes have been called but
have not been surrendered for redemption or whose right
to or interest in monies due and payable but not claimed
is determinable from the records of the Indenture Trustee
or of any Note Paying Agent, at the last address of
record for each such Noteholder).
SECTION 3.4. Existence. The Issuer shall keep
in full effect its existence, rights and franchises as a
business trust under the laws of the State of Delaware
(unless it becomes, or any successor Issuer hereunder is
or becomes, organized under the laws of any other State
or of the United States of America, in which case the
Issuer shall keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction)
and shall obtain and preserve its qualification to do
business in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collat-
eral and each other instrument or agreement included in
the Indenture Trust Estate.
SECTION 3.5. Protection of Indenture Trust
Estate. The Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and
all such financing statements, continuation statements,
instruments of further assurance and other instruments,
and shall take such other action necessary or advisable
to:
(i) maintain or preserve the lien and
security interest (and the priority thereof) of
this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or pro-
tect the validity of any Grant made or to be
made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the
Indenture Trust Estate and the rights of the
Indenture Trustee and the Noteholders in such
Indenture Trust Estate against the claims of
all Persons.
The Issuer hereby designates the Indenture Trustee its
agent and attorney-in-fact to execute any financing
statement, continuation statement or other instrument
required to be executed pursuant to this Section 3.5.
SECTION 3.6. Opinions as to Indenture Trust
Estate. (a) On the Closing Date, the Issuer shall fur-
nish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental
hereto, and any other requisite documents, and with
respect to the execution and filing of any financing
statements and continuation statements, as are necessary
to perfect and make effective the lien and security
interest of this Indenture and reciting the details of
such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien
and security interest effective.
(b) On or before April 30 in each calendar
year, beginning in ____, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-
recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and
with respect to the execution and filing of any financing
statements and continuation statements as is necessary to
maintain the lien and security interest created by this
Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe
the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of
any financing statements and continuation statements that
shall, in the opinion of such counsel, be required to
maintain the lien and security interest of this Indenture
until April 30 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servic-
ing of Receivables. (a) The Issuer shall not take any
action and shall use its best efforts not to permit any
action to be taken by others that would release any
Person from any of such Person's material covenants or
obligations under any instrument or agreement included in
the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of,
any such instrument or agreement, except as expressly
provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons
to assist it in performing its duties under this Inden-
ture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contract-
ed with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and
observe all of its obligations and agreements contained
in this Indenture, the other Basic Documents and in the
instruments and agreements included in the Indenture
Trust Estate, including, but not limited to, filing or
causing to be filed all financing statements and continu-
ation statements required to be filed under the UCC by
the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document
or any provision thereof without the consent of the
Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the principal amount of the
Notes Outstanding.
(d) If the Issuer shall have knowledge of the
occurrence of an Event of Servicing Termination under the
Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the action, if
any, the Issuer is taking in respect of such default. If
an Event of Servicing Termination shall arise from the
failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with
respect to the Receivables, the Issuer shall take all
reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of
notice of termination to the Servicer of the Servicer's
rights and powers pursuant to Section 8.1 of the Sale and
Servicing Agreement or the Servicer's resignation in
accordance with the terms of the Sale and Servicing
Agreement, the Issuer shall appoint a successor servicer
(the "Successor Servicer") meeting the requirements of
the Sale and Servicing Agreement, and such Successor
Servicer shall accept its appointment by a written as-
sumption in a form acceptable to the Indenture Trustee.
In the event that a Successor Servicer has not been
appointed at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee without further action
shall automatically be appointed the Successor Servicer.
The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer
and in such event shall be released from such duties and
obligations, such release not to be effective until the
date a new servicer enters into a servicing agreement
with the Issuer as provided below. Upon delivery of any
such notice to the Issuer, the Issuer shall obtain a new
servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer (other than
the Indenture Trustee) shall (i) be an established insti-
tution having a net worth of not less than $100,000,000
and whose regular business shall include the servicing of
automotive receivables and (ii) enter into a servicing
agreement with the Issuer having substantially the same
provisions as the provisions of the Sale and Servicing
Agreement applicable to the Servicer. If, within thirty
(30) days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a new
servicer, the Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a
Successor Servicer. In connection with any such appoint-
ment, the Indenture Trustee may make such arrangements
for the compensation of such successor as it and such
successor shall agree, subject to the limitations set
forth below and in the Sale and Servicing Agreement, and,
in accordance with Section 8.2 of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with
such successor for the servicing of the Receivables (such
agreement to be in form and substance satisfactory to the
Indenture Trustee). If the Indenture Trustee shall
succeed to the Servicer's duties as servicer of the
Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture
Trustee and, accordingly, the provisions of Article VI
hereof shall be inapplicable to the Indenture Trustee in
its duties as the successor to the Servicer and the
servicing of the Receivables. In case the Indenture
Trustee shall become successor to the Servicer under the
Sale and Servicing Agreement, the Indenture Trustee shall
be entitled to appoint as Servicer any one of its Affili-
ates; provided that the Indenture Trustee, in its capaci-
ty as the Servicer, shall be fully liable for the actions
and omissions of such Affiliate in such capacity as
Successor Servicer.
(f) Upon any termination of the Servicer's
rights and powers pursuant to the Sale and Servicing
Agreement, the Issuer shall promptly notify the Indenture
Trustee. As soon as a Successor Servicer is appointed by
the Issuer, the Issuer shall notify the Indenture Trustee
of such appointment, specifying in such notice the name
and address of such Successor Servicer.
(g) Without derogating from the absolute nature
of the assignment granted to the Indenture Trustee under
this Indenture or the rights of the Indenture Trustee
hereunder, the Issuer hereby agrees that it shall not,
without the prior written consent of the Indenture Trust-
ee or the Noteholders of Notes evidencing not less than a
majority in principal amount of the Notes Outstanding,
amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any
Collateral (except to the extent otherwise provided in
the Sale and Servicing Agreement or the other Basic
Documents).
SECTION 3.8 Negative Covenants. So long as any
Notes are Outstanding, the Issuer shall not:
(i) except as expressly permitted by
this Indenture, the Trust Agreement or the Sale
and Servicing Agreement, sell, transfer, ex-
change or otherwise dispose of any of the prop-
erties or assets of the Issuer, including those
included in the Indenture Trust Estate, unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any
deduction from the principal or interest pay-
able in respect of, the Notes (other than
amounts properly withheld from such payments
under the Code) or assert any claim against any
present or former Noteholder by reason of the
payment of the taxes levied or assessed upon
the Trust;
(iii) dissolve or liquidate in whole or in
part; or
(iv) (A) permit the validity or effec-
tiveness of this Indenture to be impaired, or
permit the lien of this Indenture to be amend-
ed, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released
from any covenants or obligations with respect
to the Notes under this Indenture except as may
be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the
assets of the Trust or any part thereof or any
interest therein or the proceeds thereof (other
than tax liens, mechanics' liens and other
liens that arise by operation of law, in each
case on any of the Financed Vehicles and aris-
ing solely as a result of an action or omission
of the related Obligor) or (C) permit the lien
of this Indenture not to constitute a valid
first priority (other than with respect to any
such tax, mechanics' or other lien) security
interest in the Indenture Trust Estate.
SECTION 3.9. Annual Statement as to Compliance.
The Issuer shall deliver to the Indenture Trustee, within
120 days after the end of each calendar year (commencing
with the year ____), an Officer's Certificate stating, as
to the Authorized Officer signing such Officer's Certifi-
cate, that:
(i) a review of the activities of the
Issuer during such year and of its performance
under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized
Officer's knowledge, based on such review, the
Issuer has complied with all conditions and
covenants under this Indenture throughout such
year, or, if there has been a default in its
compliance with any such condition or covenant,
specifying each such default known to such
Authorized Officer and the nature and status
thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only
on Certain Terms. (a) The Issuer shall not consolidate
or merge with or into any other Person, unless:
(i) the Person (if other than the Issu-
er) formed by or surviving such consolidation
or merger shall be a Person organized and ex-
isting under the laws of the United States of
America or any state thereof and shall express-
ly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trust-
ee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the
principal of and interest on all Notes and the
performance or observance of every agreement
and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to
such transaction, no Default or Event of De-
fault shall have occurred and be continuing;
(iii) the Rating Agency Condition shall
have been satisfied with respect to such trans-
action;
(iv) the Issuer shall have received an
Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any
material adverse tax consequence to the Issuer,
any Noteholder or any Certificateholder;
(v) any action that is necessary to
maintain the lien and security interest created
by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to
the Indenture Trustee an Officer's Certificate
and an Opinion of Counsel each stating that
such consolidation or merger and such supple-
mental indenture comply with this Article III
and that all conditions precedent herein pro-
vided for relating to such transaction have
been complied with (including any filing re-
quired by the Exchange Act).
(b) Other than as specifically contemplated by
the Basic Documents, the Issuer shall not convey or
transfer any of its properties or assets, including those
included in the Indenture Trust Estate, to any Person,
unless:
(i) the Person that acquires by convey-
ance or transfer the properties and assets of
the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United
States citizen or a Person organized and exist-
ing under the laws of the United States of
America or any state thereof, (B) expressly
assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trust-
ee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the
principal of and interest on all Notes and the
performance or observance of every agreement
and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as
provided herein, (C) expressly agrees by means
of such supplemental indenture that all right,
title and interest so conveyed or transferred
shall be subject and subordinate to the rights
of Noteholders, (D) unless otherwise provided
in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless
the Issuer against and from any loss, liability
or expense arising under or related to this
Indenture and the Notes, and (E) expressly
agrees by means of such supplemental indenture
that such Person (or if a group of Persons,
then one specified Person) shall make all fil-
ings with the Commission (and any other appro-
priate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to
such transaction, no Default or Event of De-
fault shall have occurred and be continuing;
(iii) the Rating Agency Condition shall
have been satisfied with respect to such trans-
action;
(iv) the Issuer shall have received an
Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any
material adverse tax consequence to the Issuer,
any Noteholder or any Certificateholder;
(v) any action that is necessary to
maintain the lien and security interest created
by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to
the Indenture Trustee an Officer's Certificate
and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemen-
tal indenture comply with this Article III and
that all conditions precedent herein provided
for relating to such transaction have been
complied with (including any filing required by
the Exchange Act).
SECTION 3.11. Successor of Transferee. (a) Upon
any consolidation or merger of the Issuer in accordance
with Section 3.10(a), the Person formed by or surviving
such consolidation or merger (if other than the Issuer)
shall succeed to, and be substituted for, and may exer-
cise every right and power of, the Issuer under this
Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the
assets and properties of the Issuer pursuant to Section
3.10(b), the Issuer shall be released from every covenant
and agreement of this Indenture to be observed or per-
formed on the part of the Issuer with respect to the
Notes immediately upon the delivery of written notice to
the Indenture Trustee stating that the Issuer is to be so
released.
SECTION 3.12. No Other Business. The Issuer
shall not engage in any business other than financing,
acquiring, owning and pledging the Receivables in the
manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not
issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any indebtedness
except for the Notes and the Certificates.
SECTION 3.14. Servicer's Obligations. The Issuer
shall cause the Servicer to comply with the Sale and
Servicing Agreement, including Sections 3.9, 3.10, 3.11,
3.12, 3.13, 3.14 and 4.9 and Article VII thereof.
SECTION 3.15. Guarantees, Loans, Advances and
Other Liabilities. Except as contemplated by this Inden-
ture and the other Basic Documents, the Issuer shall not
make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the
effect of assuring another's payment or performance on
any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks
or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or
make any capital contribution to, any other Person.
SECTION 3.16. Capital Expenditures. The Issuer
shall not make any expenditure (by long-term or operating
lease or otherwise) for capital assets (either realty or
personalty).
SECTION 3.17. Further Instruments and Acts. Upon
request of the Indenture Trustee, the Issuer shall exe-
cute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 3.18. Restricted Payments. The Issuer
shall not, directly or indirectly, (i) make any distribu-
tion (by reduction of capital or otherwise), whether in
cash, property, securities or a combination thereof, to
the Owner Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership
or equity interest or security in or of the Issuer or to
the Servicer or the Administrator, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership
or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to
be made, (x) payments to the Servicer, the Administrator,
the Owner Trustee, the Noteholders and the Certificate-
holders as contemplated by, and to the extent funds are
available for such purpose under, this Indenture and the
other Basic Documents and (y) payments to the Indenture
Trustee pursuant to Section 2(a)(ii) of the Administra-
tion Agreement. The Issuer shall not, directly or indi-
rectly, make payments to or distributions from the Col-
lection Account except in accordance with this Indenture
and the other Basic Documents.
SECTION 3.19. Notice of Events of Default. The
Issuer shall give the Indenture Trustee and the Rating
Agencies prompt written notice of each Event of Default
hereunder and of each default on the part of any party to
the Sale and Servicing Agreement with respect to any of
the provisions thereof.
SECTION 3.20. Removal of Administrator. For so
long as any Notes are Outstanding, the Issuer shall not
remove the Administrator without cause unless the Rating
Agency Condition shall have been satisfied in connection
therewith.
End of Article III
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of
Indenture. This Indenture shall cease to be of further
effect with respect to the Notes except as to (i) rights
of registration of transfer and exchange, (ii) substitu-
tion of mutilated, destroyed, lost or stolen Notes, (iii)
rights of Noteholders to receive payments of principal
thereof and interest thereon, (iv) Sections 3.3, 3.4,
3.5, 3.8, 3.10, 3.12 and 3.13, (v) the rights, obliga-
tions and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under
Section 6.7 and the obligations of the Indenture Trustee
under Section 4.3), and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or
any of them, and the Indenture Trustee, on demand of and
at the expense of the Issuer, shall execute proper in-
struments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when:
(A) either
(1) all Notes theretofore
authenticated and delivered (other
than (i) Notes that have been de-
stroyed, lost or stolen and that have
been replaced or paid as provided in
Section 2.6 and (ii) Notes for whose
payment money has theretofore been
deposited in trust or segregated and
held in trust by the Issuer and
thereafter repaid to the Issuer or
discharged from such trust, as pro-
vided in Section 3.3) have been de-
livered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore
delivered to the Indenture Trustee
for cancellation have become due and
payable and the Issuer has irrevoca-
bly deposited or caused to be irrevo-
cably deposited with the Indenture
Trustee cash or direct obligations of
or obligations guaranteed by the
United States of America (which will
mature prior to the date such amounts
are payable), in trust for such pur-
pose, in an amount sufficient to pay
and discharge the entire indebtedness
on such Notes not theretofore deliv-
ered to the Indenture Trustee for
cancellation when due to the applica-
ble Final Scheduled Distribution Date
or Redemption Date (if Notes shall
have been called for redemption pur-
suant to Section 10.1(a)), as the
case may be;
(B) the Issuer has paid or caused to be paid
all other sums payable hereunder and under any of
the other Basic Documents by the Issuer;
(C) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the
applicable requirements of Section 11.1(a) and,
subject to Section 11.2, each stating that all
conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture
have been complied with; and
(D) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that the
satisfaction and discharge of the Notes pursuant to
this Section 4.1 will not cause any Noteholder to be
treated as having sold or exchanged any of its Notes
for purposes of Section 1001 of the Code.
SECTION 4.2. Satisfaction, Discharge and
Defeasance of Notes. (a) Upon satisfaction of the
conditions set forth in subsection (b) below, the Issuer
shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Notes, and the provi-
sions of this Indenture, as it relates to such Notes,
shall no longer be in effect (and the Indenture Trustee,
at the expense of the Issuer, shall execute proper in-
struments acknowledging the same), except as to (i)
rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen
Notes, (iii) rights of Noteholders to receive payments of
principal thereof and interest thereon, (iv) Sections
3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and 3.13, (v) the rights,
obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee
under Section 6.7 and the obligations of the Indenture
Trustee under Section 4.3), and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable
to all or any of them.
(b) The satisfaction, discharge and defeasance
of the Notes pursuant to subsection (a) of this Section
4.2 is subject to the satisfaction of all of the follow-
ing conditions:
(i) the Issuer has deposited or caused
to be deposited irrevocably (except as provided in
Section 4.4) with the Indenture Trustee as trust
funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the
Noteholders, which, through the payment of interest
and principal in respect thereof in accordance with
their terms will provide, not later than one day
prior to the due date of any payment referred to
below, money in an amount sufficient, in the opinion
of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Indenture
Trustee, to pay and discharge the entire indebted-
ness on the outstanding Notes, for principal thereof
and interest thereon to the date of such deposit (in
the case of Notes that have become due and payable)
or to the maturity of such principal and interest,
as the case may be;
(ii) the deposit described in Section
4.2(b)(i) will not result in a breach or violation
of, or constitute an event of default under, any
other agreement or instrument to which the Issuer is
bound;
(iii) no Event of Default with respect
to the Notes shall have occurred and be continuing
on the date of the deposit described in Section
4.2(b)(i) or on the ninety-first (91st) day after
such date;
(iv) the Issuer has delivered to the
Indenture Trustee an Opinion of Counsel to the
effect that the satisfaction, discharge and defea-
sance of the Notes pursuant to this Section 4.2 will
not cause any Noteholder to be treated as having
sold or exchanged any of its Notes for purposes of
Section 1001 of the Code; and
(v) the Issuer has delivered to the
Indenture Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by
this Section 4.2 have been complied with.
SECTION 4.3. Application of Trust Money. All
monies deposited with the Indenture Trustee pursuant to
Sections 4.1 and 4.2 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or
through any Note Paying Agent, as the Indenture Trustee
may determine, to the Noteholders of the particular Notes
for the payment or redemption of which such monies have
been deposited with the Indenture Trustee, of all sums
due and to become due thereon for principal and interest,
but such monies need not be segregated from other funds
except to the extent required herein or in the Sale and
Servicing Agreement or required by law.
SECTION 4.4. Repayment of Monies Held by Note
Paying Agent. In connection with the satisfaction and
discharge of this Indenture with respect to the Notes,
all monies then held by any Note Paying Agent other than
the Indenture Trustee under the provisions of this Inden-
ture with respect to such Notes shall, upon demand of the
Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.3 and thereupon such Note
Paying Agent shall be released from all further liability
with respect to such monies.
End of Article IV
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. "Event of
Default," wherever used herein, means the occurrence of
any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any in-
terest on any Note when the same becomes due
and payable, and such default shall continue
for a period of five (5) days or more; or
(ii) default in the payment of the
principal of or any installment of the princi-
pal of any Note when the same becomes due and
payable; or
(iii) default in the observance or per-
formance of any material covenant or agreement
of the Issuer made in this Indenture (other
than a covenant or agreement, a default in the
observance or performance of which is elsewhere
in this Section 5.1 specifically dealt with),
or any representation or warranty of the Issuer
made in this Indenture or in any certificate or
other writing delivered pursuant hereto or in
connection herewith proving to have been incor-
rect in any material respect as of the time
when the same shall have been made, and such
default shall continue or not be cured, or the
circumstance or condition in respect of which
such misrepresentation or warranty was incor-
rect shall not have been eliminated or other-
wise cured, for a period of sixty (60) days or
in the case of a materially incorrect represen-
tation and warranty thirty (30) days, after
there shall have been given, by registered or
certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture
Trustee by the Noteholders of Notes evidencing
not less than 25% of the principal amount of
the Notes Outstanding, a written notice speci-
fying such default or incorrect representation
or warranty and requiring it to be remedied and
stating that such notice is a notice of Default
hereunder; or
(iv) the filing of a decree or order
for relief by a court having jurisdiction in
the premises in respect of the Issuer or any
substantial part of the Indenture Trust Estate
in an involuntary case under any applicable
federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial
part of the Indenture Trust Estate, or ordering
the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty
(60) consecutive days; or
(v) the commencement by the Issuer of a
voluntary case under any applicable federal or
State bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent
by the Issuer to the entry of an order for
relief in an involuntary case under any such
law, or the consent by the Issuer to the ap-
pointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, se-
questrator or similar official of the Issuer or
for any substantial part of the Indenture Trust
Estate, or the making by the Issuer of any
general assignment for the benefit of credi-
tors, or the failure by the Issuer generally to
pay its debts as such debts become due, or the
taking of any action by the Issuer in further-
ance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within
five (5) days after the occurrence thereof, written
notice in the form of an Officer's Certificate of any
event which with the giving of notice and the lapse of
time would become an Event of Default under clause (iii)
above, its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 5.2. Acceleration of Maturity; Rescis-
sion and Annulment. (a) If an Event of Default should
occur and be continuing, then and in every such case the
Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the principal amount of the
Notes Outstanding may declare all the Notes to be immedi-
ately due and payable, by a notice in writing to the
Issuer (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration,
shall become immediately due and payable.
(b) At any time after a declaration of accel-
eration of maturity has been made and before a judgment
or decree for payment of the amount due has been obtained
by the Indenture Trustee as hereinafter provided in this
Article V, the Noteholders of Notes evidencing not less
than a majority of the principal amount of the Notes
Outstanding, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration
and its consequences if:
(i) the Issuer has paid or deposited
with the Indenture Trustee a sum sufficient to
pay:
(A) all payments of
principal of and interest on all
Notes and all other amounts that
would then be due hereunder or
upon such Notes if the Event of
Default giving rise to such accel-
eration had not occurred; and
(B) all sums paid or
advanced by the Indenture Trustee
hereunder and the reasonable com-
pensation, expenses, disbursements
and advances of the Indenture
Trustee and its agents and coun-
sel; and
(ii) all Events of Default, other than
the nonpayment of the principal of the Notes
that has become due solely by such accelera-
tion, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and
Suits for Enforcement by Indenture Trustee. (a) The
Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes
due and payable, and such default continues for a period
of five (5) days or more, or (ii) default is made in the
payment of the principal of or any installment of the
principal of any Note when the same becomes due and
payable, the Issuer shall, upon demand of the Indenture
Trustee, pay to the Indenture Trustee, for the benefit of
the Noteholders, the whole amount then due and payable on
such Notes for principal and interest, with interest upon
the overdue principal and, to the extent payment at such
rate of interest shall be legally enforceable, upon
overdue installments of interest at the rate specified in
Section 2.8 and in addition thereto such further amount
as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, ex-
penses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to
pay such amounts upon such demand, the Indenture Trustee,
in its own name and as trustee of an express trust, may
institute a Proceeding for the collection of the sums so
due and unpaid, and may prosecute such Proceeding to
judgment or final decree, and may enforce the same
against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property
of the Issuer or other obligor upon such Notes, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is
continuing, the Indenture Trustee may, as more particu-
larly provided in Section 5.4, in its discretion, proceed
to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect
and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Inden-
ture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative
to the Issuer or any other obligor upon the Notes or any
Person having or claiming an ownership interest in the
Indenture Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or
State bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken posses-
sion of the Issuer or its property or such other obligor
or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon
the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespec-
tive of whether the principal of any Notes shall then be
due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture
Trustee shall have made any demand pursuant to the provi-
sions of this Section 5.3, shall be entitled and empow-
ered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims
for the whole amount of principal and interest
owing and unpaid in respect of the Notes and to
file such other papers or documents as may be
necessary or advisable in order to have the
claims of the Indenture Trustee (including any
claim for reasonable compensation to the Inden-
ture Trustee and each predecessor Indenture
Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all ex-
penses and liabilities incurred, and all ad-
vances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable
law and regulations, to vote on behalf of the
Noteholders in any election of a trustee, a
standby trustee or Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any monies
or other property payable or deliverable on any
such claims and to pay all amounts received
with respect to the claims of the Noteholders
and of the Indenture Trustee on their behalf;
and
(iv) to file such proofs of claim and
other papers or documents as may be necessary
or advisable in order to have the claims of the
Indenture Trustee or the Noteholders allowed in
any judicial proceedings relative to the Issu-
er, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby autho-
rized by each of such Noteholders to make payments to the
Indenture Trustee and, in the event that the Indenture
Trustee shall consent to the making of payments directly
to such Noteholders, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable com-
pensation to the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents, attorneys
and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee, except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed
to authorize the Indenture Trustee to authorize or con-
sent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the
rights of any Noteholder or to authorize the Indenture
Trustee to vote in respect of the claim of any Noteholder
in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Per-
son.
(f) All rights of action and of asserting
claims under this Indenture, or under any of the Notes,
may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and
any such action or Proceedings instituted by the Inden-
ture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, sub-
ject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attor-
neys, shall be for the ratable benefit of the
Noteholders.
(g) In any Proceedings brought by the Inden-
ture Trustee (and also any Proceedings involving the
interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Inden-
ture Trustee shall be held to represent all the
Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an
Event of Default shall have occurred and be continuing,
the Indenture Trustee may do one or more of the following
(subject to Section 5.5):
(i) institute Proceedings in its own
name and as trustee of an express trust for the
collection of all amounts then payable on the
Notes or under this Indenture with respect
thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such
Notes monies adjudged due;
(ii) institute Proceedings from time to
time for the complete or partial foreclosure of
this Indenture with respect to the Indenture
Trust Estate;
(iii) exercise any remedies of a se-
cured party under the UCC and take any other
appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee
and the Noteholders; and
(iv) sell the Indenture Trust Estate or
any portion thereof or rights or interest
therein, at one or more public or private sales
called and conducted in any manner permitted by
law;
provided, however, that the Indenture Trustee may not
sell or otherwise liquidate the Indenture Trust Estate
following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii) and other
than if required to sell the Indenture Trust Estate
pursuant to the Trust Agreement as a result of the occur-
rence of an Insolvency Event or a dissolution with re-
spect to any of the Sellers [or the General Partner],
unless (A) the Noteholders of Notes evidencing 100% of
the principal amount of the Notes Outstanding consent
thereto, (B) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the ac-
crued interest on the outstanding Notes or (C) the Inden-
ture Trustee determines that the Indenture Trust Estate
will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they
would have become due if the Notes had not been declared
due and payable, and the Indenture Trustee obtains the
consent of Noteholders of Notes evidencing not less than
66-2/3% of the principal amount of the Notes Outstanding.
In determining such sufficiency or insufficiency with
respect to clauses (B) and (C) above, the Indenture
Trustee may, but need not, obtain and rely upon an opin-
ion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Inden-
ture Trust Estate for such purpose.
(b) If the Indenture Trustee collects any
money or property pursuant to this Article V, it shall
pay out the money or property in the following order:
(i) first, to the Indenture Trustee for
amounts due under Section 6.7;
(ii) second, to the Servicer for due
and unpaid Servicing Fees;
(iii) third, to Noteholders for amounts
due and unpaid on the Notes in respect of in-
terest, ratably, without preference or priority
of any kind, according to the amounts due and
payable on the Notes for interest;
(iv) fourth, to Noteholders of the
[Class A-1] Notes for amounts due and unpaid on
the [Class A-1] Notes for principal, ratably,
without preference or priority of any kind,
according to the amounts due and payable on the
[Class A-1] Notes for principal, until the
principal amount of the outstanding [Class A-1]
Notes is reduced to zero;
[(v) fifth, to Noteholders of the Class
A-2 Notes for amounts due and unpaid on the
Class A-2 Notes for principal, ratably, without
preference or priority of any kind, according
to the amounts due and payable on the Class A-2
Notes for principal, until the principal amount
of the outstanding Class A-2 Notes is reduced
to zero];
[(vi) sixth, to Noteholders of the
Class A-3 Notes for amounts due and unpaid on
the Class A-3 Notes for principal, ratably,
without preference or priority of any kind,
according to the amounts due and payable on the
Class A-3 Notes for principal, until the prin-
cipal amount of the outstanding Class A-3 Notes
is reduced to zero];
(vii) seventh, to the Issuer for
amounts required to be distributed to the Cer-
tificateholders pursuant to the Trust Agreement
and the Sale and Servicing Agreement.
The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this
Section 5.4. At least fifteen (15) days before such
record date, the Issuer shall mail to each Noteholder and
the Indenture Trustee a notice that states the record
date, the payment date and the amount to be paid.
SECTION 5.5. Optional Preservation of the
Receivables. If the Notes have been declared to be due
and payable under Section 5.2 following an Event of
Default, and such declaration and its consequences have
not been rescinded and annulled, the Indenture Trustee
may, but need not, elect to maintain possession of the
Indenture Trust Estate and apply proceeds as if there had
been no declaration of acceleration; provided, however,
that Available Funds shall be applied in accordance with
such declaration of acceleration in the manner specified
in Section 4.6(c) of the Sale and Servicing Agreement.
It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the
Notes, and the Indenture Trustee shall take such desire
into account when determining whether or not to maintain
possession of the Indenture Trust Estate. In determining
whether to maintain possession of the Indenture Trust
Estate, the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such pur-
pose.
SECTION 5.6. Limitation of Suits. No
Noteholder shall have any right to institute any Proceed-
ing, judicial or otherwise, with respect to this Inden-
ture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Noteholder has previously giv-
en written notice to the Indenture Trustee of a
continuing Event of Default;
(b) the Noteholders of Notes evidencing
not less than 25% of the principal amount of
the Notes Outstanding have made written request
to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default
in its own name as Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have
offered to the Indenture Trustee reasonable
indemnity against the costs, expenses and lia-
bilities to be incurred in complying with such
request;
(d) the Indenture Trustee for sixty
(60) days after its receipt of such notice,
request and offer of indemnity has failed to
institute such Proceedings; and
(e) no direction inconsistent with such
written request has been given to the Indenture
Trustee during such sixty-day period by the
Noteholders of Notes evidencing not less than a
majority of the principal amount of the Notes
Outstanding.
It is understood and intended that no one or more
Noteholders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other Noteholders or to obtain or to seek to obtain
priority or preference over any other Noteholders or to
enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall re-
ceive conflicting or inconsistent requests and indemnity
from two or more groups of Noteholders, each evidencing
less than a majority of the principal amount of the Notes
Outstanding, the Indenture Trustee in its sole discretion
may determine what action, if any, shall be taken, not-
withstanding any other provisions of this Indenture.
SECTION 5.7. Unconditional Rights of
Noteholders To Receive Principal and Interest. Notwith-
standing any other provisions in this Indenture, any
Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and
interest, if any, on its Note on or after the respective
due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforce-
ment of any such payment, and such right shall not be
impaired without the consent of such Noteholder.
SECTION 5.8. Restoration of Rights and Reme-
dies. If the Indenture Trustee or any Noteholder has
instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discon-
tinued or abandoned for any reason or has been determined
adversely to the Indenture Trustee or to such Noteholder,
then and in every such case the Issuer, the Indenture
Trustee and the Noteholders shall, subject to any deter-
mination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no
such Proceeding had been instituted.
SECTION 5.9. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
the Indenture Trustee or to the Noteholders is intended
to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employ-
ment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
SECTION 5.10. Delay or Omission Not a Waiver.
No delay or omission of the Indenture Trustee or any
Noteholder to exercise any right or remedy accruing upon
any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such De-
fault or Event of Default or any acquiescence therein.
Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11. Control by Noteholders. The
Noteholders of Notes evidencing not less than a majority
of the principal amount of the Notes Outstanding shall
have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising
any trust or power conferred on the Indenture Trustee;
provided that:
(a) such direction shall not be in con-
flict with any rule of law or with this Inden-
ture;
(b) subject to the express terms of
Section 5.4, any direction to the Indenture
Trustee to sell or liquidate the Indenture
Trust Estate shall be by Noteholders of Notes
evidencing not less than 100% of the principal
amount of the Notes Outstanding;
(c) if the conditions set forth in Sec-
tion 5.5 have been satisfied and the Indenture
Trustee elects to retain the Indenture Trust
Estate pursuant to such Section 5.5, then any
direction to the Indenture Trustee by
Noteholders of Notes evidencing less than 100%
of the principal amount of the Notes Outstand-
ing to sell or liquidate the Indenture Trust
Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any
other action deemed proper by the Indenture
Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in
this Section 5.11, subject to Section 6.1, the Indenture
Trustee need not take any action that it determines might
involve it in costs, expenses and liabilities for which
it will not be adequately indemnified or might materially
adversely affect the rights of any Noteholders not con-
senting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior
to the declaration of the acceleration of the maturity of
the Notes as provided in Section 5.2, the Noteholders of
Notes evidencing not less than a majority of the princi-
pal amount of the Notes Outstanding may waive any past
Default or Event of Default and its consequences except a
Default (a) in the payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or
provision hereof that cannot be amended, supplemented or
modified without the consent of each Noteholder. In the
case of any such waiver, the Issuer, the Indenture Trust-
ee and the Noteholders shall be restored to their former
positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or
impair any right consequent thereto.
Upon any such waiver, such Default shall cease
to exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom
shall be deemed to have been cured and not to have oc-
curred, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 5.13. Undertaking for Costs. All
parties to this Indenture agree, and each Noteholder by
such Noteholder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion re-
quire, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its dis-
cretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a)
any suit instituted by the Indenture Trustee, (b) any
suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more
than 10% of the principal amount of the Notes Outstanding
or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed
in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14. Waiver of Stay or Extension
Laws. The Issuer covenants (to the extent that it may
lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no
such law had been enacted.
SECTION 5.15. Action on Notes. The Indenture
Trustee's right to seek and recover judgment on the Notes
or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the
lien of this Indenture nor any rights or remedies of the
Indenture Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Indenture Trustee
against the Issuer or by the levy of any execution under
such judgment upon any portion of the Indenture Trust
Estate or upon any of the assets of the Issuer. Any
money or property collected by the Indenture Trustee
shall be applied in accordance with Section 5.4(b).
SECTION 5.16. Performance and Enforcement of
Certain Obligations. (a) Promptly following a request
from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such
lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by the
Sellers and the Servicer, as applicable, of their respec-
tive obligations to the Issuer under or in connection
with the Sale and Servicing Agreement, and to exercise
any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and
in the manner directed by the Indenture Trustee, includ-
ing the transmission of notices of default on the part of
the Sellers or the Servicer thereunder and the institu-
tion of legal or administrative actions or proceedings to
compel or secure performance by the Sellers or the
Servicer of each of their respective obligations under
the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and at the direc-
tion (which direction shall be in writing or by tele-
phone, confirmed in writing promptly thereafter) of the
Noteholders of Notes evidencing not less than 66-2/3% of
the principal amount of the Notes Outstanding shall,
exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Sellers or the Servicer
under or in connection with the Sale and Servicing Agree-
ment, including the right or power to take any action to
compel or secure performance or observance by the Sellers
or the Servicer of their respective obligations to the
Issuer thereunder and to give any consent, request,
notice, direction, approval, extension, or waiver under
the Sale and Servicing Agreement, and any right of the
Issuer to take such action shall be suspended.
End of Article V
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of Indenture Trustee. (a)
If an Event of Default has occurred and is continuing,
the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and 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 such Person's own affairs.
(b) Except during the continuance of an Event
of Default:
(i) the Indenture Trustee undertakes to
perform such duties and only such duties as are
specifically set forth in this Indenture and no
implied covenants or obligations shall be read
into this Indenture against the Indenture
Trustee; and
(ii) in the absence of bad faith on its
part, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Indenture Trustee and, if required by the terms
of this Indenture, conforming to the require-
ments of this Indenture; provided, however,
that the Indenture Trustee shall examine the
certificates and opinions to determine whether
or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved
from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct,
except that:
(i) this paragraph does not limit the
effect of paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be
liable for any error of judgment made in good
faith by a Trustee Officer unless it is proved
that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not
be liable with respect to any action it takes
or omits to take in good faith in accordance
with a direction received by it pursuant to
Section 5.11.
(d) The Indenture Trustee shall not be liable
for interest on any money received by it except as the
Indenture Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Indenture
Trustee need not be segregated from other funds except to
the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall
require the Indenture Trustee to expend or risk its own
funds or otherwise incur 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 to believe that repayment of such
funds or adequate indemnity against such risk or liabili-
ty is not reasonably assured to it.
(g) Every provision of this Indenture relating
to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to
the provisions of this Section 6.1 and to the provisions
of the TIA.
(h) The Indenture Trustee shall not be charged
with knowledge of any Event of Default unless either (1)
a Trustee Officer shall have actual knowledge of such
Event of Default or (2) written notice of such Event of
Default shall have been given to the Indenture Trustee in
accordance with the provisions of this Indenture.
SECTION 6.2. Rights of Indenture Trustee. (a)
The Indenture Trustee may rely on any document believed
by it to be genuine and to have been signed or presented
by the proper Person. The Indenture Trustee need not
investigate any fact or matters stated in any such docu-
ment.
(b) Before the Indenture Trustee acts or
refrains from acting, it may require an Officer's Certif-
icate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officer's Certifi-
cate or Opinion of Counsel unless it is proved that the
Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or
negligence on the part of, or for the supervision of, any
such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights
or powers; provided, however, that such action or omis-
sion by the Indenture Trustee does not constitute willful
misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with
counsel, and the advice or opinion of counsel with re-
spect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and pro-
tection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
SECTION 6.3. Individual Rights of Indenture
Trustee. The Indenture Trustee, in its individual or any
other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Inden-
ture Trustee. Any Note Paying Agent, Note Registrar, co-
registrar or co-paying agent hereunder may do the same
with like rights.
SECTION 6.4. Indenture Trustee's Disclaimer.
The Indenture Trustee (i) shall not be responsible for,
and makes no representation, as to the validity or ade-
quacy of this Indenture or the Notes and (ii) shall not
be accountable for the Issuer's use of the proceeds from
the Notes, or responsible for any statement of the Issuer
in this Indenture or in any document issued in connection
with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication.
SECTION 6.5. Notice of Defaults; Insolvency or
Dissolution of Any Depositor or the General Partner. (a)
If a Default occurs and is continuing and if it is known
to a Trustee Officer of the Indenture Trustee, the Inden-
ture Trustee shall mail to each Noteholder notice of such
Default within [ninety (90)] days after it occurs.
Except in the case of a Default in payment of principal
of or interest on any Note (including payments pursuant
to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long
as a committee of its Trustee Officers in good faith
determines that withholding the notice is in the inter-
ests of Noteholders.
(b) If the Indenture Trustee receives notice
from the Owner Trustee of the occurrence of an Insolvency
Event or a dissolution with respect to the General Part-
ner pursuant to Section 9.2 of the Trust Agreement, the
Indenture Trustee shall give prompt written notice to the
Noteholders of the occurrence of such event. If the
Indenture Trustee receives notice from the Owner Trustee
pursuant to such Section 9.2 that the requisite percent-
ages of Noteholders, Certificateholders and holders of
interests, if any, in the Reserve Account disapprove of
the liquidation of the Receivables and termination of the
Trust pursuant to such Section 9.2, the Indenture Trust-
ee, at the expense of the Issuer, shall (i) appoint an
entity acceptable to [NationsBank Corporation] to acquire
an interest in the Trust and to act as substitute "gener-
al partner" of the Trust for federal income tax purposes
and (ii) obtain an Opinion of Counsel that the Trust will
not thereafter be classified as an association (or pub-
licly traded partnership) taxable as a corporation for
federal income tax and Applicable Tax State purposes. If
the Indenture Trustee is unable to locate such an entity
or obtain such Opinion of Counsel within ninety (90) days
after the date of the applicable Insolvency Event or
dissolution, the Indenture Trustee shall so notify the
Owner Trustee promptly in writing. Upon termination of
the Trust pursuant to such Section 9.2, the Indenture
Trustee shall, if so directed by the Owner Trustee, sell
the assets of the Trust (other than the Trust Accounts[,
the Reserve Account, the Yield Supplement Account] and
the Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms.
The proceeds of such a sale of the assets of the Trust
shall be treated as collections of Receivables under the
Sale and Servicing Agreement and deposited in the Collec-
tion Account and the Notes and Certificates shall be paid
in accordance with Section 4.6 of the Sale and Servicing
Agreement.
SECTION 6.6. Reports by Indenture Trustee to
Noteholders. The Indenture Trustee shall deliver to each
Noteholder such information prepared by the Servicer
pursuant to Section 3.10 of the Sale and Servicing Agree-
ment as may be required to enable such Noteholder to
prepare its federal and State income tax returns.
SECTION 6.7. Compensation and Indemnity. (a)
The Issuer shall, or shall cause the Administrator to,
pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensa-
tion of a trustee of an express trust. The Issuer shall,
or shall cause the Administrator to, reimburse the Inden-
ture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such
expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The
Issuer shall, or shall cause the Administrator to, indem-
nify the Indenture Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred
by it in connection with the administration of this trust
and the performance of its duties hereunder. The Inden-
ture Trustee shall notify the Issuer and the Administra-
tor promptly of any claim for which it may seek indemni-
ty. Failure by the Indenture Trustee to so notify the
Issuer and the Administrator shall not relieve the Issuer
or the Administrator of its obligations hereunder. The
Issuer shall, or shall cause the Administrator to, defend
any such claim, and the Indenture Trustee may have sepa-
rate counsel and the Issuer shall, or shall cause the
Administrator to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Administrator need
reimburse any expense or indemnity against any loss,
liability or expense incurred by the Indenture Trustee
through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
(b) The Issuer's payment obligations to the
Indenture Trustee pursuant to this Section 6.7 shall
survive the resignation or removal of the Indenture
Trustee and the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of
a Default specified in Section 5.1(iv) or (v) with re-
spect to the Issuer, the expenses are intended to consti-
tute expenses of administration under Title 11 of the
United States Code or any other applicable federal or
State bankruptcy, insolvency or similar law.
SECTION 6.8. Replacement of Indenture Trustee.
(a) No resignation or removal of the Indenture Trustee,
and no appointment of a successor Indenture Trustee,
shall become effective until the acceptance of appoint-
ment by the successor Indenture Trustee pursuant to this
Section 6.8. The Indenture Trustee may resign at any
time by so notifying the Issuer. The Noteholders of
Notes evidencing not less than a majority in principal
amount of the Notes Outstanding may remove the Indenture
Trustee without cause by so notifying the Indenture
Trustee and the Issuer and may appoint a successor Inden-
ture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to com-
ply with Section 6.11;
(ii) an Insolvency Event occurs with
respect to the Indenture Trustee;
(iii) a receiver or other public offi-
cer takes charge of the Indenture Trustee or
its property; or
(iv) the Indenture Trustee otherwise
becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a
vacancy exists in the office of Indenture Trustee for any
reason (the Indenture Trustee in such event being re-
ferred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture
Trustee.
(b) Any successor Indenture Trustee shall
deliver a written acceptance of its appointment to the
retiring Indenture Trustee and to the Issuer. Thereupon,
the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Inden-
ture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trust-
ee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
(c) If a successor Indenture Trustee does not
take office within sixty (60) days after the retiring
Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of Notes
evidencing not less than a majority in principal amount
of the Notes Outstanding may petition any court of compe-
tent jurisdiction for the appointment of a successor
Indenture Trustee. If the Indenture Trustee fails to
comply with Section 6.11, any Noteholder may petition any
court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor
Indenture Trustee.
(d) Notwithstanding the replacement of the
Indenture Trustee pursuant to this Section 6.8, the
obligations of the Issuer and the Administrator under
Section 6.7 shall continue for the benefit of the retir-
ing Indenture Trustee.
SECTION 6.9. Successor Indenture Trustee by
Merger. (a) If the Indenture Trustee consolidates with,
merges or converts into, or transfers all or substantial-
ly all its corporate trust business or assets to, another
corporation or banking association, the resulting, sur-
viving or transferee corporation or banking association
without any further act shall be the successor Indenture
Trustee; provided that such corporation or banking asso-
ciation shall be otherwise qualified and eligible under
Section 6.11. The Indenture Trustee shall provide the
Rating Agencies with prior written notice of any such
transaction.
(b) In case at the time such successor or
successors by merger, conversion or consolidation to the
Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenti-
cated but not delivered, any such successor to the Inden-
ture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in
the name of any predecessor hereunder or in the name of
the successor to the Indenture Trustee. In all such
cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided
that the certificate of the Indenture Trustee shall have.
SECTION 6.10. Appointment of Co-Indenture
Trustee or Separate Indenture Trustee. (a) Notwith-
standing any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of
any jurisdiction in which any part of the Indenture Trust
Estate may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver an
instrument to appoint one or more Persons to act as a co-
trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Indenture
Trust Estate, or any part hereof, and, subject to the
other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. No co-
trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee
under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall
be required under Section 6.8 hereof.
(b) Every 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 ob-
ligations conferred or imposed upon the Inden-
ture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate
trustee or co-trustee shall not be authorized
to act separately without the Indenture Trustee
joining in such act), except to the extent that
under any law of any jurisdiction in which any
particular act or acts are to be performed the
Indenture Trustee shall be incompetent or un-
qualified to perform such act or acts, in which
event such rights, powers, duties and obliga-
tions (including the holding of title to the
Indenture Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised
and performed singly by such separate trustee
or co-trustee, but solely at the direction of
the Indenture Trustee;
(ii) no trustee hereunder shall be per-
sonally liable by reason of any act or omission
of any other trustee hereunder; and
(iii) the Indenture Trustee 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 Indenture Trustee shall be deemed to have been
given to each of the then separate trustees and co-trust-
ees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee
shall refer to this Indenture and the conditions of this
Article VI. 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 Indenture Trustee
or separately, as may be provided therein, subject to all
the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection
to, the Indenture Trustee. Every such instrument shall
be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at
any time constitute the Indenture 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 Indenture Trustee,
to the extent permitted by law, without the appointment
of a new or successor trustee.
SECTION 6.11. Eligibility; Disqualification.
The Indenture Trustee shall at all times satisfy the
requirements of TIA Section 310(a). The Indenture Trust-
ee or its parent shall have a combined capital and sur-
plus of at least $50,000,000 as set forth in its most
recent published annual report of condition and shall
have a long-term debt rating of investment grade by each
of the Rating Agencies or shall otherwise be acceptable
to each of the Rating Agencies. The Indenture Trustee
shall comply with TIA Section 310(b).
SECTION 6.12. Preferential Collection of
Claims Against Issuer. The Indenture Trustee shall
comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture
Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated.
End of Article VI
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture
Trustee Names and Addresses of Noteholders. The Issuer
shall furnish or cause to be furnished to the Indenture
Trustee (a) not more than five (5) days after each Record
Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the
Noteholders as of such Record Date and (b) at such other
times as the Indenture Trustee may request in writing,
within thirty (30) days after receipt by the Issuer of
any such request, a list of similar form and content as
of a date not more than ten (10) days prior to the time
such list is furnished; provided, however, that so long
as (i) the Indenture Trustee is the Note Registrar or
(ii) the Notes are issued as Book-Entry Notes, no such
list shall be required to be furnished.
SECTION 7.2. Preservation of Information;
Communications to Noteholders. (a) The Indenture Trust-
ee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Noteholders
contained in the most recent list furnished to the Inden-
ture Trustee as provided in Section 7.1 and the names and
addresses of Noteholders received by the Indenture Trust-
ee in its capacity as Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided
in such Section 7.1 upon receipt of a new list so fur-
nished.
(b) Noteholders may communicate pursuant to
TIA Section 312(b) with other Noteholders with respect to
their rights under this Indenture or under the Notes.
Upon receipt by the Indenture Trustee of any request by
three or more Noteholders or by one or more Noteholders
of Notes evidencing not less than 25% of the Notes Out-
standing to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA Sec-
tion 312(b)), the Indenture Trustee shall promptly notify
the Administrator thereof by providing to the Administra-
tor a copy of such request and a copy of the list of
Noteholders produced in response thereto.
(c) The Issuer, the Indenture Trustee and the
Note Registrar shall have the protection of TIA Section
312(c).
SECTION 7.3. Reports by Issuer. (a) The
Issuer shall:
(i) file with the Indenture Trustee,
within fifteen (15) days after the Issuer is
required to file the same with the Commission,
copies of the annual reports and of the infor-
mation, documents and other reports (or copies
of such portions of any of the foregoing as the
Commission may from time to time by rules and
regulations prescribe) that the Issuer may be
required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee
and the Commission in accordance with the rules
and regulations prescribed from time to time by
the Commission such additional information,
documents and reports with respect to compli-
ance by the Issuer with the conditions and
covenants of this Indenture as may be required
from time to time by such rules and regula-
tions; and
(iii) supply to the Indenture Trustee
(and the Indenture Trustee shall transmit by
mail to all Noteholders described in TIA Sec-
tion 313(c)) such summaries of any information,
documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of
this Section 7.3(a) and by rules and regula-
tions prescribed from time to time by the Com-
mission.
(b) Unless the Issuer otherwise determines,
the fiscal year of the Issuer shall correspond to the
calendar year.
SECTION 7.4. Reports by Indenture Trustee.
(a) If required by TIA Section 313(a), within sixty (60)
days after each March 31, beginning with March 31, ____,
the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of
such date that complies with TIA Section 313(a). The
Indenture Trustee also shall comply with TIA Section
313(b).
(b) A copy of each report at the time of its
mailing to Noteholders shall be filed by the Indenture
Trustee with the Commission and each stock exchange, if
any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are
listed on any stock exchange.
End of Article VII
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money. Except as
otherwise expressly provided herein, the Indenture Trust-
ee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assis-
tance of any fiscal agent or other intermediary, all
money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture and the Sale
and Servicing Agreement. The Indenture Trustee shall
apply all such money received by it as provided in this
Indenture and the Sale and Servicing Agreement. Except
as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or perfor-
mance under any agreement or instrument that is part of
the Indenture Trust Estate, the Indenture Trustee may
take such action as may be appropriate to enforce such
payment or performance, including the institution and
prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a De-
fault or Event of Default under this Indenture and any
right to proceed thereafter as provided in Article V.
SECTION 8.2. Trust Accounts[, the Reserve
Account and the Yield Supplement Account]. (a) On or
prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain the Trust Accounts[,
the Reserve Account and the Yield Supplement Account] as
provided in Sections 4.1[, 4.7 and 5.1, respectively,] of
the Sale and Servicing Agreement.
(b) On or before each Distribution Date, the
Servicer shall deposit all Available Funds with respect
to the preceding Collection Period in the Collection
Account as provided in Section 4.2 of the Sale and Ser-
vicing Agreement. On or before each Distribution Date,
all amounts required to be deposited in the Note Payment
Account with respect to the preceding Collection Period
pursuant to Sections 4.6 [and 4.7] of the Sale and Ser-
vicing Agreement shall be withdrawn by the Indenture
Trustee from the Collection Account [and/or the Reserve
Account] and deposited to the Note Payment Account for
payment to Noteholders on such Distribution Date.
(c) On each Distribution Date and Redemption
Date, the Indenture Trustee (or any other Note Paying
Agent) shall distribute all amounts deposited in the Note
Payment Account pursuant to paragraph (b) above to
Noteholders in respect of the Notes to the extent of
amounts payable on the Notes for principal and interest
in the following amounts and in the following order of
priority (except as otherwise provided in Section
5.4(b)):
(i) the [Accrued Note Interest], to the
Noteholders; provided that if there are not suffi-
cient funds received to pay the entire amount of the
[Accrued Note Interest], the amounts so received
shall be applied to the payment of such interest on
the Notes on a pro rata basis;
(ii) the Noteholders' Principal Payment
Amount, to the Noteholders [of the Class A-1 Notes]
until the principal amount of the outstanding [Class
A-1] Notes is reduced to zero; provided that if
there are not sufficient funds received to pay the
principal amount of the outstanding [Class A-1]
Notes, the amounts so received shall be applied to
the payment of principal on the [Class A-1] Notes on
a pro rata basis;
[(iii) the Noteholders' Principal
Payment Amount, to the Noteholders of the Class A-2
Notes until the principal amount of the outstanding
Class A-2 Notes is reduced to zero; provided that if
there are not sufficient funds received to pay the
principal amount of the outstanding Class A-2 Notes,
the amounts so received shall be applied to the
payment of principal on the Class A-2 Notes on a pro
rata basis; and]
[(iv) the Noteholders' Principal Payment
Amount, to the Noteholders of the Class A-3 Notes
until the principal amount of the outstanding Class
A-3 Notes is reduced to zero; provided that if there
are not sufficient funds received to pay the princi-
pal amount of the outstanding Class A-3 Notes, the
amounts so received shall be applied to the payment
of principal on the Class A-3 Notes on a pro rata
basis.]
SECTION 8.3. General Provisions Regarding
Accounts. (a) So long as no Default or Event of Default
shall have occurred and be continuing, all or a portion
of the funds in the Collection Account[, the Reserve
Account and the Yield Supplement Account] shall be in-
vested by the Indenture Trustee at the direction of the
Servicer in Permitted Investments as provided in Sections
4.1[, 4.7 and 5.1] of the Sale and Servicing Agreement.
All income or other gain (net of losses and investment
expenses) from investments of monies deposited in the
Collection Account[, the Reserve Account and the Yield
Supplement Account] shall be withdrawn by the Indenture
Trustee from such accounts[ (but only under the circum-
stances set forth in the Sale and Servicing Agreement in
the case of the Reserve Account and the Yield Supplement
Account)] and distributed as provided in Sections 4.1,
4.7 and 5.1 of the Sale and Servicing Agreement. The
Servicer shall not direct the Indenture Trustee to make
any investment of any funds or to sell any investment
held in any of the Trust Accounts [or in the Reserve
Account or the Yield Supplement Account] unless the
security interest Granted and perfected in such account
will continue to be perfected in such investment or the
proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direc-
tion to the Indenture Trustee to make any such investment
or sale, if requested by the Indenture Trustee, the
Issuer shall deliver to the Indenture Trustee an Opinion
of Counsel, acceptable to the Indenture Trustee, to such
effect.
(b) Subject to Section 6.1(c), the Indenture
Trustee shall not in any way be held liable by reason of
any insufficiency in any of the Trust Accounts [or in the
Reserve Account or the Yield Supplement Account] result-
ing from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture
Trustee's failure to make payments on such Permitted
Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
(c) If (i) the Servicer shall have failed to
give investment directions for any funds on deposit in
the Collection Account[, the Reserve Account or the Yield
Supplement Account] to the Indenture Trustee by 11:00
a.m. New York Time (or such other time as may be agreed
by the Issuer and Indenture Trustee) on the Business Day
preceding each Distribution Date or (ii) to the knowledge
of a Trustee Officer of the Indenture Trustee, a Default
or Event of Default shall have occurred and be continuing
with respect to the Notes but the Notes shall not have
been declared due and payable pursuant to Section 5.2 or
(iii) if such Notes shall have been declared due and
payable following an Event of Default, amounts collected
or receivable from the Indenture Trust Estate are being
applied in accordance with Section 5.4 as if there had
not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and
reinvest funds in the Collection Account[, the Reserve
Account or the Yield Supplement Account, as the case may
be,] in one or more Permitted Investments described in
clause (b) of the definition thereof.
SECTION 8.4. Release of Indenture Trust Es-
tate. (a) Subject to the payment of its fees and ex-
penses pursuant to Section 6.7, the Indenture Trustee
may, and when required by the provisions of this Inden-
ture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provi-
sions of this Indenture. No party relying upon an in-
strument executed by the Indenture Trustee as provided in
this Article VIII shall be bound to ascertain the Inden-
ture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of
any monies.
(b) The Indenture Trustee shall, at such time
as there are no Notes Outstanding and all sums due the
Indenture Trustee pursuant to Section 6.7 have been paid
in full, release any remaining portion of the Indenture
Trust Estate that secured the Notes from the lien of this
Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property
from the lien of this Indenture pursuant to this Section
8.4(b) only upon receipt of an Issuer Request accompanied
by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting
the applicable requirements of Section 11.1.
(c) Each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges that from
time to time the Indenture Trustee shall release the lien
of this Indenture on any Receivable to be sold to (i) the
Sellers in accordance with Section 2.4 of the Sale and
Servicing Agreement and (ii) to the Servicer in accor-
dance with Section 3.7 of the Sale and Servicing Agree-
ment.
SECTION 8.5. Opinion of Counsel. The Inden-
ture Trustee shall receive at least seven (7) days notice
when requested by the Issuer to take any action pursuant
to Section 8.4(a), accompanied by copies of any instru-
ments involved, and the Indenture Trustee shall also
require, except in connection with any action contemplat-
ed by Section 8.4(c), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to
the Indenture Trustee, stating the legal effect of any
such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the
taking of such action have been complied with and such
action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders
in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not
be required to express an opinion as to the fair value of
the Indenture Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on
the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connec-
tion with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without
Consent of Noteholders. (a) Without the consent of the
Noteholders but with prior notice to the Rating Agencies,
the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the descrip-
tion of any property at any time subject to the
lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee
any property subject or required to be subject-
ed to the lien of this Indenture, or to subject
to the lien of this Indenture additional prop-
erty;
(ii) to evidence the succession, in
compliance with the applicable provisions here-
of, of another Person to the Issuer, and the
assumption by any such successor of the cove-
nants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the
Issuer, for the benefit of the Noteholders, or
to surrender any right or power herein con-
ferred upon the Issuer;
(iv) to convey, transfer, assign, mort-
gage or pledge any property to or with the
Indenture Trustee;
(v) to cure any ambiguity, to correct
or supplement any provision herein or in any
supplemental indenture that may be inconsistent
with any other provision herein or in any sup-
plemental indenture or to make any other provi-
sions with respect to matters or questions
arising under this Indenture or under any sup-
plemental indenture; provided that such action
shall not materially adversely affect the in-
terests of the Noteholders;
(vi) to evidence and provide for the
acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and
to add to or change any of the provisions of
this Indenture as shall be necessary to facili-
tate the administration of the trusts hereunder
by more than one trustee, pursuant to the re-
quirements of Article VI; or
(vii) to modify, eliminate or add to
the provisions of this Indenture to such extent
as shall be necessary to affect the qualifica-
tion of this Indenture under the TIA or under
any similar federal statute hereafter enacted
and to add to this Indenture such other provi-
sions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to
join in the execution of any such supplemental indenture
and to make any further appropriate agreements and stipu-
lations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the
consent of any of the Noteholders but with prior notice
to the Rating Agencies, enter into an indenture or inden-
tures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying
in any manner the rights of the Noteholders under this
Indenture; provided, however, that (i) such action shall
not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any
Noteholder, (ii) the Rating Agency Condition shall have
been satisfied with respect to such action and (iii) such
action shall not, as evidenced by an Opinion of Counsel,
cause the Issuer to be characterized for federal or any
then Applicable Tax State income tax purposes as an
association taxable as a corporation or otherwise have
any material adverse impact on the federal or any then
Applicable Tax State income taxation of any Notes Out-
standing or outstanding Certificates or any Noteholder or
Certificateholder.
SECTION 9.2. Supplemental Indentures with
Consent of Noteholders. The Issuer and the Indenture
Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the
consent of the Noteholders of Notes evidencing not less
than a majority of the principal amount of the Notes
Outstanding, by Act of such Noteholders delivered to the
Issuer and the Indenture Trustee, enter into an indenture
or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that (i) the
Rating Agency Condition shall have been satisfied with
respect to such action and (ii) such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to
be characterized for federal or any then Applicable Tax
State income tax purposes as an association taxable as a
corporation or otherwise have any material adverse impact
on the federal or any then Applicable Tax State income
taxation of any Notes Outstanding or outstanding Certifi-
cates or any Noteholder or Certificateholder; and provid-
ed, further, that no such supplemental indenture shall,
without the consent of the Noteholder of each Outstanding
Note affected thereby:
(i) change the Final Scheduled Distri-
bution Date or the date of payment of any in-
stallment of principal of or interest on any
Note, or reduce the principal amount thereof,
the interest rate thereon or the Redemption
Price with respect thereto, change the provi-
sions of this Indenture relating to the appli-
cation of collections on, or the proceeds of
the sale of, the Indenture Trust Estate to
payment of principal of or interest on the
Notes, or change any place of payment where, or
the coin or currency in which, any Note or the
interest thereon is payable, or impair the
right to institute suit for the enforcement of
the provisions of this Indenture requiring the
application of funds available therefor, as
provided in Article V, to the payment of any
such amount due on the Notes on or after the
respective due dates thereof (or, in the case
of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the prin-
cipal amount of the Notes Outstanding, the
consent of the Noteholders of which is required
for any such supplemental indenture, or the
consent of the Noteholders of which is required
for any waiver of compliance with certain pro-
visions of this Indenture or certain defaults
hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter the provisions of
the proviso to the definition of the term "Out-
standing";
(iv) reduce the percentage of the prin-
cipal amount of the Notes Outstanding required
to direct the Indenture Trustee to sell or
liquidate the Indenture Trust Estate pursuant
to Section 5.4 if the proceeds of such sale or
liquidation would be insufficient to pay the
principal amount and accrued but unpaid inter-
est on the Notes;
(v) modify any provision of this Inden-
ture specifying a percentage of the aggregate
principal amount of the Notes necessary to
amend this Indenture or the other Basic Docu-
ments except to increase any percentage speci-
fied herein or to provide that certain addi-
tional provisions of this Indenture or the
other Basic Documents cannot be modified or
waived without the consent of the Noteholder of
each Outstanding Note affected thereby;
(vi) modify any of the provisions of
this Indenture in such manner as to affect the
calculation of the amount of any payment of
interest or principal due on any Note on any
Distribution Date (including the calculation of
any of the individual components of such calcu-
lation) or to affect the rights of the
Noteholders to the benefit of any provisions
for the mandatory redemption of the Notes con-
tained herein; or
(vii) permit the creation of any lien
ranking prior to or on a parity with the lien
of this Indenture with respect to any part of
the Indenture Trust Estate or, except as other-
wise permitted or contemplated herein, termi-
nate the lien of this Indenture on any such
collateral at any time subject hereto or de-
prive any Noteholder of the security provided
by the lien of this Indenture.
The Indenture Trustee may in its discretion determine
whether or not any Notes would be affected by any supple-
mental indenture and any such determination shall be
conclusive upon the Noteholders of all Notes, whether
theretofore or thereafter authenticated and delivered
hereunder. The Indenture Trustee shall not be liable for
any such determination made in good faith.
It shall not be necessary for any Act of
Noteholders under this Section 9.2 to approve the partic-
ular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the sub-
stance thereof.
Promptly after the execution by the Issuer and
the Indenture Trustee of any supplemental indenture
pursuant to this Section 9.2, the Indenture Trustee shall
mail to the Noteholders of the Notes to which such amend-
ment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental
indenture. Any failure of the Indenture Trustee to mail
such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. Execution of Supplemental Inden-
tures. In executing, or permitting the additional trusts
created by, any supplemental indenture permitted by this
Article IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be
entitled to receive, and subject to Sections 6.1 and 6.2,
shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture
and that all conditions precedent to the execution and
delivery of such supplemental indenture have been satis-
fied. The Indenture Trustee may, but shall not be obli-
gated to, enter into any such supplemental indenture that
affects the Indenture Trustee s own rights, duties,
liabilities or immunities under this Indenture or other-
wise.
SECTION 9.4. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant
to the provisions hereof, this Indenture shall be and
shall be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and
the respective rights, limitations of rights, obliga-
tions, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the
Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modi-
fications and amendments, and all the terms and condi-
tions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.5. Conformity with Trust Indenture
Act. Every amendment of this Indenture and every supple-
mental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture
Act as then in effect so long as this Indenture shall
then be qualified under the Trust Indenture Act.
SECTION 9.6. Reference in Notes to Supplemen-
tal Indentures. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to
this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such
supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the
Issuer, to any such supplemental indenture may be pre-
pared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Out-
standing Notes.
End of Article IX
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. (a) The Notes are
subject to redemption in whole, but not in part, at the
direction of the Servicer pursuant to Section 9.1(a) of
the Sale and Servicing Agreement, on any Distribution
Date on which the Servicer exercises its option to pur-
chase the assets of the Issuer pursuant to such Section
9.1(a), and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay
the unpaid principal amount of the Notes and the Certifi-
cate Balance of the Certificates plus accrued and unpaid
interest thereon. The Servicer or the Issuer shall
furnish the Rating Agencies and the Noteholders notice of
such redemption. If the Notes are to be redeemed pursu-
ant to this Section 10.1(a), the Servicer or the Issuer
shall furnish notice of such election to the Indenture
Trustee not later than twenty (20) days prior to the
Redemption Date and the Issuer shall deposit by 10:00
A.M. (New York City time) on the Redemption Date with the
Indenture Trustee in the Note Payment Account the Redemp-
tion Price of the Notes to be redeemed, whereupon all
such Notes shall be due and payable on the Redemption
Date.
(b) In the event that the assets of the Issuer
are sold pursuant to Section 9.2 of the Trust Agreement,
all amounts on deposit in the Note Payment Account shall
be paid to the Noteholders up to the unpaid principal
amount of the Notes and all accrued and unpaid interest
thereon. If the amounts in the Note Payment Account are
to be paid to Noteholders pursuant to this Section
10.1(b), the Servicer or the Issuer shall, to the extent
practicable, furnish notice of such event to the Inden-
ture Trustee not later than twenty (20) days prior to the
Redemption Date, whereupon all such amounts shall be
payable on the Redemption Date.
SECTION 10.2. Form of Redemption Notice.
Notice of redemption under Section 10.1(a) shall be given
by the Indenture Trustee by first-class mail, postage
prepaid, or by facsimile mailed or transmitted promptly
following receipt of notice from the Issuer or Servicer
pursuant to Section 10.1(a), but not later than ten (10)
days prior to the applicable Redemption Date, to each
Noteholder as of the close of business on the Record Date
preceding the applicable Redemption Date, at such
Noteholder s address or facsimile number appearing in the
Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to
be surrendered for payment of the Redemption
Price (which shall be the office or agency of
the Issuer to be maintained as provided in
Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the
Issuer. Failure to give notice of redemption, or any
defect therein, to any Noteholder shall not impair or
affect the validity of the redemption of any other Note.
SECTION 10.3. Notes Payable on Redemption
Date. The Notes to be redeemed shall, following notice
of redemption as required by Section 10.2 (in the case of
redemption pursuant to Section 10.1(a)), shall on the
Redemption Date become due and payable at the Redemption
Price and (unless the Issuer shall default in the payment
of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculat-
ing the Redemption Price.
End of Article X
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and
Opinions, etc. (a) Upon any application or request by
the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certif-
icate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Coun-
sel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the
applicable requirements of this Section 11.1, except
that, in the case of any such application or request as
to which the furnishing of such documents is specifically
required by any provision of this Indenture, no addition-
al certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(A) a statement that each signatory of such
certificate or opinion has read or has caused to be
read such covenant or condition and the definitions
herein relating thereto;
(B) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such certif-
icate or opinion are based;
(C) a statement that, in the opinion of each
such signatory, such signatory has made such exami-
nation or investigation as is necessary to enable
such signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(D) a statement as to whether, in the opinion
of each such signatory, such condition or covenant
has been complied with.
(b)(i) Prior to the deposit of any Collateral
or other property or securities with the Indenture Trust-
ee that is to be made the basis for the release of any
property or securities subject to the lien of this Inden-
ture, the Issuer shall, in addition to any obligation
imposed in Section 11.1(a) or elsewhere in this Inden-
ture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value
(within ninety (90) days of such deposit) to the Issuer
of the Collateral or other property or securities to be
so deposited.
(ii) Whenever the Issuer is required to
furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion
of any signer thereof as to the matters de-
scribed in clause (i) above, the Issuer shall
also deliver to the Indenture Trustee an Inde-
pendent Certificate as to the same matters, if
the fair value to the Issuer of the securities
to be so deposited and of all other such secu-
rities made the basis of any such withdrawal or
release since the commencement of the then-
current fiscal year of the Issuer, as set forth
in the certificates delivered pursuant to
clause (i) above and this clause (ii), is ten
percent (10%) or more of the principal amount
of the Notes Outstanding, but such a certifi-
cate need not be furnished with respect to any
securities so deposited, if the fair value
thereof to the Issuer as set forth in the re-
lated Officer's Certificate is less than
$25,000 or less than one percent (1%) of the
principal amount of the Notes Outstanding.
(iii) Whenever any property or securities
are to be released from the lien of this Inden-
ture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each per-
son signing such certificate as to the fair
value (within ninety (90) days of such release)
of the property or securities proposed to be
released and stating that in the opinion of
such person the proposed release will not im-
pair the security under this Indenture in con-
travention of the provisions hereof.
(iv) Whenever the Issuer is required to
furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion
of any signer thereof as to the matters de-
scribed in clause (iii) above, the Issuer shall
also furnish to the Indenture Trustee an Inde-
pendent Certificate as to the same matters if
the fair value of the property or securities
and of all other property, other than property
as contemplated by clause (v) below or securi-
ties released from the lien of this Indenture
since the commencement of the then-current
calendar year, as set forth in the certificates
required by clause (iii) above and this clause
(iv), equals ten percent (10%) or more of the
principal amount of the Notes Outstanding, but
such certificate need not be furnished in the
case of any release of property or securities
if the fair value thereof as set forth in the
related Officer's Certificate is less than
$25,000 or less than one percent (1%) of the
principal amount of the Notes Outstanding.
(v) Notwithstanding Section 2.10 or any
other provisions of this Section 11.1, the
Issuer may, without compliance with the re-
quirements of the other provisions of this
Section 11.1, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed
Vehicles as and to the extent permitted or
required by the Basic Documents and (B) make
cash payments out of the Trust Accounts[, the
Reserve Account and the Yield Supplement Ac-
count] as and to the extent permitted or re-
quired by the Basic Documents.
SECTION 11.2. Form of Documents Delivered to
Indenture Trustee. (a) In any case where several mat-
ters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such
Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Autho-
rized Officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with
respect to the matters upon which such officer's certifi-
cate or opinion is based are erroneous. Any such certif-
icate of an Authorized Officer or opinion of counsel may
be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Sellers, the
Administrator or the Issuer, stating that the information
with respect to such factual matters is in the possession
of the Servicer, the Sellers, the Administrator or the
Issuer, or in the exercise of reasonable care should
know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give
or execute two or more applications, requests, comments,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consoli-
dated and form one instrument.
(d) Whenever in this Indenture, in connection
with any application or certificate or report to the
Indenture Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's compli-
ance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such appli-
cation or at the effective date of such certificate or
report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such appli-
cation granted or to the sufficiency of such certificate
or report. The foregoing shall not, however, be con-
strued to affect the Indenture Trustee's right to rely
upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.
SECTION 11.3. Acts of Noteholders. (a) Any
request, demand, authorization, direction, notice, con-
sent, waiver or other action provided by this Indenture
to be given or taken by Noteholders may be embodied in
and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by
agents duly appointed in writing; and except as herein
otherwise expressly provided such action shall become
effective when such instrument or instruments are deliv-
ered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or
instruments (and the action embodied herein and evidenced
thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee and the
Issuer, if made in the manner provided in this Section
11.3.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved in
any manner that the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by
the Note Register.
(d) Any request, demand, authorization, direc-
tion, notice, consent, waiver or other action by the
Noteholder of any Notes shall bind the Noteholder of
every Note issued upon the registration thereof or in
exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such
Note.
SECTION 11.4. Notices, etc., to Indenture
Trustee, Issuer and Rating Agencies. Any request, de-
mand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or
permitted by this Indenture shall be in writing and if
such request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any
Noteholder, the Servicer, the Administrator or
the Issuer shall be sufficient for every pur-
pose hereunder if made, given, furnished or
filed in writing to or with the Indenture
Trustee at its Corporate Trust office; or
(ii) the Issuer by the Indenture Trustee
or by any Noteholder shall be sufficient for
every purpose hereunder if in writing and
mailed first-class, postage prepaid to the
Issuer addressed to: NationsBank Auto Owner
Trust ____-_, in care of
______________________, Delaware, _______,
Attention: ____________] Corporate Trust De-
partment, with a copy to the Administrator at
[NationsBank, N.A., 100 North Tryon Street,
NC1-007-__-__, Charlotte, North Carolina,
28255, Attention: ___________, or at any other
address previously furnished in writing to the
Indenture Trustee by the Issuer or the Adminis-
trator. The Issuer shall promptly transmit any
notice received by it from the Noteholders to
the Indenture Trustee.
Notices required to be given to the Rating
Agencies by the Issuer, the Indenture Trustee or the
Owner Trustee shall be in writing, personally delivered,
telecopied or mailed by certified mail, return receipt
requested, to (i) in the case of Moody's, at the follow-
ing address: Moody's Investors Service, Inc., ABS Moni-
toring Department, 99 Church Street, New York, New York
10007 and (ii) in case of Standard & Poor's, at the
following address: Standard & Poor's Ratings Group, 26
Broadway (15th Floor), New York, New York 10004, Atten-
tion: Asset Backed Surveillance Department.
SECTION 11.5. Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to
Noteholders of any event, such notice shall be suffi-
ciently given (unless otherwise herein expressly provid-
ed) if in writing and mailed, first-class, postage pre-
paid to each Noteholder affected by such event, at his
address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any
case where notice to Noteholders is given by mail, nei-
ther the failure to mail such notice nor any defect in
any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to
other Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to
have been duly given.
(b) Where this Indenture provides for notice
in any manner, such notice may be waived in writing by
any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equiva-
lent of such notice. Waivers of notice by Noteholders
shall be filed with the Indenture Trustee but such filing
shall not be a condition precedent to the validity of any
action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of
regular mail service as a result of a strike, work stop-
page or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall
be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice
to the Rating Agencies, failure to give such notice shall
not affect any other rights or obligations created here-
under, and shall not under any circumstance constitute a
Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice
Provisions. Notwithstanding any provision of this Inden-
ture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Noteholder providing
for a method of payment, or notice by the Indenture
Trustee or any Note Paying Agent to such Noteholder, that
is different from the methods provided for in this Inden-
ture for such payments or notices. The Issuer shall
furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee shall cause payments
to be made and notices to be given in accordance with
such agreements.
SECTION 11.7. Conflict with Trust Indenture
Act. If any provision hereof limits, qualifies or con-
flicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall
control.
The provisions of TIA Sections 310 through 317
that impose duties on any Person (including the provi-
sions automatically deemed included herein unless ex-
pressly excluded by this Indenture) are a part of and
govern this Indenture, whether or not physically con-
tained herein.
SECTION 11.8. Effect of Headings and Table of
Contents. The Article and Section headings herein and
the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All
covenants and agreements in this Indenture and the Notes
by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its suc-
cessors, co-trustees and agents.
SECTION 11.10. Separability. In case any
provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legali-
ty, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 11.11. Benefits of Indenture. Nothing
in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto
and their successors hereunder, and the Noteholders, and
any other party secured hereunder, and any other Person
with an ownership interest in any part of the Indenture
Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case
where the date on which any payment is due shall not be a
Business Day, then (notwithstanding any other provision
of the Notes or this Indenture) payment need not be made
on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on
the date on which nominally due, and no interest shall
accrued for the period from and after any such nominal
date.
SECTION 11.13. Governing Law. This Indenture
shall be construed in accordance with the laws of the
State of New York.
SECTION 11.14. Counterparts. This Indenture
may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one
and the same instrument.
SECTION 11.15. Recording of Indenture. If
this Indenture is subject to recording in any appropriate
public recording offices, such recording is to be effect-
ed by the Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or
any other Person secured hereunder or for the enforcement
of any right or remedy granted to the Indenture Trustee
under this Indenture.
SECTION 11.16. Trust Obligation. No recourse
may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee
or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or
the Indenture Trustee or of any successor or assign of
the Indenture Trustee or the Owner Trustee in its indi-
vidual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in
their individual capacity), and except that any such
partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
SECTION 11.17. No Petition. The Indenture
Trustee, by entering into this Indenture, and each
Noteholder or Note Owner, by accepting a Note or, in the
case of a Note Owner, a beneficial interest in a Note,
hereby covenant and agree that they will not at any time
institute against the General Partner or the Issuer, or
join in any institution against the General Partner or
the Issuer of, any bankruptcy, reorganization, arrange-
ment, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state
bankruptcy or similar law in connection with any obliga-
tions relating to the Notes, this Indenture or any of the
other Basic Documents.
SECTION 11.18. Inspection. The Issuer agrees
that, with reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books
of account, records, reports and other papers of the
Issuer, to make copies and extracts therefrom, to cause
such books to be audited by Independent certified public
accountants, and to discuss the Issuer's affairs, financ-
es and accounts with the Issuer's officers, employees,
and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably re-
quested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such informa-
tion except to the extent disclosure may be required by
law (and all reasonable applications for confidential
treatment are unavailing) and except to the extent that
the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
IN WITNESS WHEREOF, the Issuer and the Inden-
ture Trustee have caused this Indenture to be duly exe-
cuted by their respective officers, thereunto duly autho-
rized and duly attested, all as of the day and year first
above written.
NATIONSBANK AUTO OWNER TRUST __-__
By: ,
not in its individual
capacity but solely as Owner
Trustee
By:
Name:
Title:
,
not in its individual
capacity but solely as
Indenture Trustee
By:
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary
Public in and for said county and state, on this day
personally appeared , known to me to be the
person and officer whose name is subscribed to the fore-
going instrument and acknowledged to me that the same was
the act of the said NATIONSBANK AUTO OWNER TRUST ____-_,
a Delaware business trust, for the purpose and consider-
ation therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this
day of ________, ____.
Notary Public in and for
the State of New York.
[Seal]
My commission expires:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary
Public in and for said county and state, on this day
personally appeared , known to me to be the
person and officer whose name is subscribed to the fore-
going instrument and acknowledged to me that the same was
the act of ________________, a _________ banking corpora-
tion, and that such person executed the same as the act
of said corporation for the purpose and consideration
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this
day of __________, _____.
Notary Public in and for
the State of New York.
[Seal]
My commission expires:
EXHIBIT A-1
[FORM OF [CLASS A-1] NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESEN-
TATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPO-
RATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRA-
TION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTA-
TIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRE-
SENTATIVE 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $_____
No. CUSIP NO.__________
NATIONSBANK AUTO OWNER TRUST _____-__
____% [CLASS A-1] ASSET BACKED NOTES
NationsBank Auto Owner Trust _____-__, a busi-
ness trust organized and existing under the laws of the
State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of
_____________________ DOLLARS payable on each Distribu-
tion Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is
$[INSERT INITIAL PRINCIPAL AMOUNT OF NOTE] and the denom-
inator of which is $_______________ by (ii) the aggregate
amount, if any, payable to [Class A-1] Noteholders on
such Distribution Date from the Note Payment Account in
respect of principal on the Notes pursuant to Section 3.1
of the Indenture dated as of _______ __, ____, (as from
time to time amended, supplemented or otherwise modified
and in effect, the "Indenture") between the Issuer and
__________, a ___________ banking corporation, as Inden-
ture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the
earlier of the ____________ Distribution Date (the
"[Class A-1] Final Scheduled Distribution Date") and the
Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture. Capitalized terms used but not defined
herein are defined in Article I of the Indenture, which
also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at a
rate per annum of ____% (the "Class A-! Rate") on each
Distribution Date until the principal of this Note is
paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Distri-
bution Date (after giving effect to all payments of
principal made on the preceding Distribution Date),
subject to certain limitations contained in Section 3.1
of the Indenture. Interest on this Note will accrue for
each Distribution Date from and including the previous
Distribution Date (or, in the case of the initial Distri-
bution Date, from the Closing Date) to but excluding such
Distribution Date (each, an "Accrual Period"). Interest
will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are
payable in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provid-
ed above and then to the unpaid principal of this Note.
Reference is made to the further provisions of
this Note set forth on the reverse hereof, which shall
have the same effect as though fully set forth on the
face of this Note.
Unless the certificate of authentication hereon
has been executed by the Indenture Trustee whose name
appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any
purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be signed, manually or in facsimile, by its
Authorized Officer, as of the date set forth below.
Date:
NATIONSBANK AUTO OWNER TRUST ____-_,
By: ,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date:
_____________________________,
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of
Notes of the Issuer, designated as its _____% [Class A-1]
Asset Backed Notes (the "[Class A-1] Notes") which[,
together with the Issuer's _____% Class A-2 Asset Backed
Notes (the "Class A-2 Notes") and _____% Class A-3 Asset
Backed Notes (the "Class A-3 Notes" and, together with
the [Class A-1] Notes and the Class A-2 Notes, the
"Notes"),] are issued under the Indenture, to which
Indenture and all indentures supplemental thereto refer-
ence is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are
subject to all terms of the Indenture.
The [Class A-1] Notes are and will be equally
and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. [The [Class A-1]
Notes are senior in right of payment to the Class A-2
Notes and the Class A-3 Notes as and to the extent pro-
vided in the Indenture.]
Principal of the [Class A-1] Notes will be
payable on each Distribution Date in an amount described
on the face hereof. "Distribution Date" means the
_________ day of each month, or, if any such day is not a
Business Day, the next succeeding Business Day, commenc-
ing _________ __, _____.
As described on the face hereof, the entire
unpaid principal amount of this Note shall be due and
payable on the earlier of the [Class A-1] Final Scheduled
Distribution Date and the Redemption Date, if any, pursu-
ant to Section 10.1(a) of the Indenture. Notwithstanding
the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing
and the Indenture Trustee or the Noteholders of Notes
evidencing not less than a majority of the principal
amount of the Notes Outstanding have declared the Notes
to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture. All principal payments
on the [Class A-1] Notes shall be made pro rata to the
Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person
whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note
Register as of the close of business on each Record Date,
except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), pay-
ments will be made by wire transfer in immediately avail-
able funds to the account designated by such nominee.
Such checks shall be mailed to the Person entitled there-
to at the address of such Person as it appears on the
Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by
any payments made on any Distribution Date shall be
binding upon all future Noteholders of this Note and of
any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the
then remaining unpaid principal amount of this Note on a
Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the
Record Date preceding such Distribution Date by notice
mailed or transmitted by facsimile prior to such Distri-
bution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note
at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue in-
stallments of interest at the [Class A-1][interest] Rate
to the extent lawful.
As provided in the Indenture, the Notes may be
redeemed, in whole or in part, in the manner and to the
extent described in the Indenture and the Sale and Ser-
vicing Agreement.
As provided in the Indenture, and subject to
certain limitations set forth therein, the transfer of
this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to
the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to
the Indenture Trustee duly executed by, the Noteholder
hereof or such Noteholder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Note Registrar, and thereupon one or more new Notes of
authorized denominations and in the same aggregate prin-
cipal amount will be issued to the designated transferee
or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note,
but the transferor may be required to pay a sum suffi-
cient to cover any tax or other governmental charge that
may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by its accep-
tance of a Note or, in the case of a Note Owner, a bene-
ficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing deliv-
ered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, except as any such
Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for
stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of
a Note or, in the case of a Note Owner, a beneficial
interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the General
Partner or the Issuer, or join in any institution against
the General Partner or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or state
bankruptcy or similar law in connection with any obliga-
tions relating to the Notes, the Indenture or the other
Basic Documents.
The Issuer has entered into the Indenture and
this Note is issued with the intention that, for federal,
state and local income, and franchise tax purposes, the
Notes will qualify as indebtedness of the Issuer secured
by the Indenture Trust Estate. Each Noteholder, by its
acceptance of a Note (and each Note Owner by its accep-
tance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income,
single business and franchise tax purposes as indebted-
ness of the Issuer.
Prior to the due presentment for registration
of transfer of this Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as
of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note
be overdue, and none of the Issuer, the Indenture Trustee
or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modi-
fication of the rights and obligations of the Issuer and
the rights of the Noteholders under the Indenture at any
time by the Issuer with the consent of the Noteholders of
Notes evidencing not less than a majority of the princi-
pal amount of the Notes Outstanding. The Indenture also
contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount
of the Notes Outstanding, on behalf of all Noteholders,
to waive compliance by the Issuer with certain provisions
of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or
waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon
such Noteholder and upon all future Noteholders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions
set forth in the Indenture without the consent of the
Noteholders.
The term "Issuer", as used in this Note, in-
cludes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under
certain circumstances, to merge or consolidate, subject
to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form
in denominations as provided in the Indenture, subject to
certain limitations therein set forth.
This Note and the Indenture shall be governed
by, and construed in accordance with the laws of the
State of New York.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest
on this Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstand-
ing, except as expressly provided in the Basic Documents,
none of ________________, in its individual capacity,
______________________ in its individual capacity, any
owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, offi-
cers, directors, employees or successors or assigns shall
be personally liable for, nor shall recourse be had to
any of them for, the payment of principal or of interest
on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note,
by his acceptance hereof, agrees that, except as express-
ly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Noteholder
shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying
number of assignee:
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby
irrevocably constitutes and appoints _________________,
attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in
the premises.
Dated: */
Signature Guaranteed
*/
*/ NOTICE: The signature to this assignment must
correspond with the name of the registered owner as
it appears on the face of the within Note in every
particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed
by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-2
[FORM OF CLASS A-2 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESEN-
TATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPO-
RATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRA-
TION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTA-
TIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRE-
SENTATIVE 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $_____
No. CUSIP NO.__________
NATIONSBANK AUTO OWNER TRUST _____-__
____% CLASS A-2 ASSET BACKED NOTES
NationsBank Auto Owner Trust _____-__, a busi-
ness trust organized and existing under the laws of the
State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of
_____________________ DOLLARS payable on each Distribu-
tion Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is
$[INSERT INITIAL PRINCIPAL AMOUNT OF NOTE] and the denom-
inator of which is $_______________ by (ii) the aggregate
amount, if any, payable to Class A-2 Noteholders on such
Distribution Date from the Note Payment Account in re-
spect of principal on the Notes pursuant to Section 3.1
of the Indenture dated as of _______ __, ____, (as from
time to time amended, supplemented or otherwise modified
and in effect, the "Indenture") between the Issuer and
__________, a ___________ banking corporation, as Inden-
ture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the
earlier of the ____________ Distribution Date (the "Class
A-2 Final Scheduled Distribution Date") and the Redemp-
tion Date, if any, pursuant to Section 10.1(a) of the
Indenture. Capitalized terms used but not defined herein
are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applica-
ble herein.
The Issuer shall pay interest on this Note at a
rate per annum equal to ___% (the "Class A-2 Rate") on
each Distribution Date until the principal of this Note
is paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Distri-
bution Date (after giving effect to all payments of
principal made on the preceding Distribution Date),
subject to certain limitations contained in Section 3.1
of the Indenture. Interest on this Note will accrue for
each Distribution Date from and including the previous
Distribution Date (or, in the case of the initial Distri-
bution Date, from the Closing Date) to but excluding such
Distribution Date (each, an "Accrual Period"). Interest
will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are
payable in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provid-
ed above and then to the unpaid principal of this Note.
Reference is made to the further provisions of
this Note set forth on the reverse hereof, which shall
have the same effect as though fully set forth on the
face of this Note.
Unless the certificate of authentication hereon
has been executed by the Indenture Trustee whose name
appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any
purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be signed, manually or in facsimile, by its
Authorized Officer, as of the date set forth below.
Date:
NATIONSBANK AUTO OWNER TRUST ___-_,
By: ,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date:
_____________________________,
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of
Notes of the Issuer, designated as its _____% Class A-2
Asset Backed Notes (the "Class A-2 Notes") which, togeth-
er with the Issuer's _____% [Class A-1] Asset Backed
Notes (the "[Class A-1] Notes") and _____% Class A-3
Asset Backed Notes (the "Class A-3 Notes" and, together
with the [Class A-1] Notes and the Class A-2 Notes, the
"Notes"), are issued under the Indenture, to which Inden-
ture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to
all terms of the Indenture.
The Class A-2 Notes are and will be equally and
ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class A-2
Notes are subordinated in right of payment to the [Class
A-1] Notes and senior in right of payment to the Class A-
3 Notes, each as and to the extent provided in the Inden-
ture.
Principal of the Class A-2 Notes will be pay-
able on each Distribution Date in an amount described on
the face hereof. "Distribution Date" means the _________
day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing
_________ __, _____.
As described on the face hereof, the entire
unpaid principal amount of this Note shall be due and
payable on the earlier of the Class A-2 Final Scheduled
Distribution Date and the Redemption Date, if any, pursu-
ant to Section 10.1(a) of the Indenture. Notwithstanding
the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing
and the Indenture Trustee or the Noteholders of Notes
evidencing not less than a majority of the principal
amount of the Notes Outstanding have declared the Notes
to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture. All principal payments
on the Class A-2 Notes shall be made pro rata to the
Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person
whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note
Register as of the close of business on each Record Date,
except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), pay-
ments will be made by wire transfer in immediately avail-
able funds to the account designated by such nominee.
Such checks shall be mailed to the Person entitled there-
to at the address of such Person as it appears on the
Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by
any payments made on any Distribution Date shall be
binding upon all future Noteholders of this Note and of
any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the
then remaining unpaid principal amount of this Note on a
Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the
Record Date preceding such Distribution Date by notice
mailed or transmitted by facsimile prior to such Distri-
bution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note
at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue in-
stallments of interest at the Class A-2 Rate to the
extent lawful.
As provided in the Indenture, the Notes may be
redeemed, in whole or in part, in the manner and to the
extent described in the Indenture and the Sale and Ser-
vicing Agreement.
As provided in the Indenture, and subject to
certain limitations set forth therein, the transfer of
this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to
the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to
the Indenture Trustee duly executed by, the Noteholder
hereof or such Noteholder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Note Registrar, and thereupon one or more new Notes of
authorized denominations and in the same aggregate prin-
cipal amount will be issued to the designated transferee
or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note,
but the transferor may be required to pay a sum suffi-
cient to cover any tax or other governmental charge that
may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by its accep-
tance of a Note or, in the case of a Note Owner, a bene-
ficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing deliv-
ered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, except as any such
Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for
stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of
a Note or, in the case of a Note Owner, a beneficial
interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the General
Partner or the Issuer, or join in any institution against
the General Partner or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or State
bankruptcy or similar law in connection with any obliga-
tions relating to the Notes, the Indenture or the other
Basic Documents.
The Issuer has entered into the Indenture and
this Note is issued with the intention that, for federal,
State and local income, and franchise tax purposes, the
Notes will qualify as indebtedness of the Issuer secured
by the Indenture Trust Estate. Each Noteholder, by its
acceptance of a Note (and each Note Owner by its accep-
tance of a beneficial interest in a Note), agrees to
treat the Notes for federal, State and local income,
single business and franchise tax purposes as indebted-
ness of the Issuer.
Prior to the due presentment for registration
of transfer of this Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as
of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note
be overdue, and none of the Issuer, the Indenture Trustee
or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modi-
fication of the rights and obligations of the Issuer and
the rights of the Noteholders under the Indenture at any
time by the Issuer with the consent of the Noteholders of
Notes evidencing not less than a majority of the princi-
pal amount of the Notes Outstanding. The Indenture also
contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount
of the Notes Outstanding, on behalf of all Noteholders,
to waive compliance by the Issuer with certain provisions
of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or
waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon
such Noteholder and upon all future Noteholders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions
set forth in the Indenture without the consent of the
Noteholders.
The term "Issuer", as used in this Note, in-
cludes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under
certain circumstances, to merge or consolidate, subject
to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form
in denominations as provided in the Indenture, subject to
certain limitations therein set forth.
This Note and the Indenture shall be governed
by, and construed in accordance with the laws of the
State of New York.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest
on this Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstand-
ing, except as expressly provided in the Basic Documents,
none of ________________, in its individual capacity,
______________________ in its individual capacity, any
owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, offi-
cers, directors, employees or successors or assigns shall
be personally liable for, nor shall recourse be had to
any of them for, the payment of principal or of interest
on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note,
by his acceptance hereof, agrees that, except as express-
ly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Noteholder
shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying
number of assignee:
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby
irrevocably constitutes and appoints _________________,
attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in
the premises.
Dated: */
Signature Guaranteed
*/
*/ NOTICE: The signature to this assignment must
correspond with the name of the registered owner as
it appears on the face of the within Note in every
particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed
by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT A-3
[FORM OF CLASS A-3 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESEN-
TATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPO-
RATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRA-
TION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTA-
TIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRE-
SENTATIVE 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $_____
No. CUSIP NO.__________
NATIONSBANK AUTO OWNER TRUST _____-__
____% CLASS A-3 ASSET BACKED NOTES
NationsBank Auto Owner Trust _____-__, a busi-
ness trust organized and existing under the laws of the
State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of
_____________________ DOLLARS payable on each Distribu-
tion Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is
$[INSERT INITIAL PRINCIPAL AMOUNT OF NOTE] and the denom-
inator of which is $_______________ by (ii) the aggregate
amount, if any, payable to Class A-3 Noteholders on such
Distribution Date from the Note Payment Account in re-
spect of principal on the Notes pursuant to Section 3.1
of the Indenture dated as of _______ __, ____, (as from
time to time amended, supplemented or otherwise modified
and in effect, the "Indenture") between the Issuer and
__________, a ___________ banking corporation, as Inden-
ture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the
earlier of the ____________ Distribution Date (the "Class
A-3 Final Scheduled Distribution Date") and the Redemp-
tion Date, if any, pursuant to Section 10.1(a) of the
Indenture. Capitalized terms used but not defined herein
are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applica-
ble herein.
The Issuer shall pay interest on this Note at a
rate per annum equal to ___% (the "Class A-3 Rate") on
each Distribution Date until the principal of this Note
is paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Distri-
bution Date (after giving effect to all payments of
principal made on the preceding Distribution Date),
subject to certain limitations contained in Section 3.1
of the Indenture. Interest on this Note will accrue for
each Distribution Date from and including the previous
Distribution Date (or, in the case of the initial Distri-
bution Date, from the Closing Date) to but excluding such
Distribution Date (each, an "Accrual Period"). Interest
will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are
payable in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts. All payments made
by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provid-
ed above and then to the unpaid principal of this Note.
Reference is made to the further provisions of
this Note set forth on the reverse hereof, which shall
have the same effect as though fully set forth on the
face of this Note.
Unless the certificate of authentication hereon
has been executed by the Indenture Trustee whose name
appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any
purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be signed, manually or in facsimile, by its
Authorized Officer, as of the date set forth below.
Date:
NATIONSBANK AUTO OWNER TRUST ___-_,
By: ,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date:
_____________________________,
not in its individual capacity but
solely as Indenture Trustee
By: ___________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of
Notes of the Issuer, designated as its _____% Class A-3
Asset Backed Notes (the "Class A-3 Notes") which, togeth-
er with the Issuer's _____% [Class A-1] Asset Backed
Notes (the "[Class A-1] Notes") and _____% Class A-2
Asset Backed Notes (the "Class A-2 Notes" and, together
with the [Class A-1] Notes and the Class A-3 Notes, the
"Notes"), are issued under the Indenture, to which Inden-
ture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to
all terms of the Indenture.
The Class A-3 Notes are and will be equally and
ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class A-3
Notes are subordinated in right of payment to the [Class
A-1] Notes and the Class A-2 Notes as and to the extent
provided in the Indenture.
Principal of the Class A-3 Notes will be pay-
able on each Distribution Date in an amount described on
the face hereof. "Distribution Date" means the _________
day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing
_________ __, _____.
As described on the face hereof, the entire
unpaid principal amount of this Note shall be due and
payable on the earlier of the Class A-3 Final Scheduled
Distribution Date and the Redemption Date, if any, pursu-
ant to Section 10.1(a) of the Indenture. Notwithstanding
the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing
and the Indenture Trustee or the Noteholders of Notes
evidencing not less than a majority of the principal
amount of the Notes Outstanding have declared the Notes
to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture. All principal payments
on the Class A-3 Notes shall be made pro rata to the
Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person
whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note
Register as of the close of business on each Record Date,
except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), pay-
ments will be made by wire transfer in immediately avail-
able funds to the account designated by such nominee.
Such checks shall be mailed to the Person entitled there-
to at the address of such Person as it appears on the
Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by
any payments made on any Distribution Date shall be
binding upon all future Noteholders of this Note and of
any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the
then remaining unpaid principal amount of this Note on a
Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the
Record Date preceding such Distribution Date by notice
mailed or transmitted by facsimile prior to such Distri-
bution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note
at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue in-
stallments of interest at the Class A-3 Rate to the
extent lawful.
As provided in the Indenture, the Notes may be
redeemed, in whole or in part, in the manner and to the
extent described in the Indenture and the Sale and Ser-
vicing Agreement.
As provided in the Indenture, and subject to
certain limitations set forth therein, the transfer of
this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to
the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to
the Indenture Trustee duly executed by, the Noteholder
hereof or such Noteholder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Note Registrar, and thereupon one or more new Notes of
authorized denominations and in the same aggregate prin-
cipal amount will be issued to the designated transferee
or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note,
but the transferor may be required to pay a sum suffi-
cient to cover any tax or other governmental charge that
may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by its accep-
tance of a Note or, in the case of a Note Owner, a bene-
ficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing deliv-
ered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee,
each in its individual capacity, except as any such
Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for
stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of
a Note or, in the case of a Note Owner, a beneficial
interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the General
Partner or the Issuer, or join in any institution against
the General Partner or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings under any United States federal or State
bankruptcy or similar law in connection with any obliga-
tions relating to the Notes, the Indenture or the other
Basic Documents.
The Issuer has entered into the Indenture and
this Note is issued with the intention that, for federal,
State and local income, and franchise tax purposes, the
Notes will qualify as indebtedness of the Issuer secured
by the Indenture Trust Estate. Each Noteholder, by its
acceptance of a Note (and each Note Owner by its accep-
tance of a beneficial interest in a Note), agrees to
treat the Notes for federal, State and local income,
single business and franchise tax purposes as indebted-
ness of the Issuer.
Prior to the due presentment for registration
of transfer of this Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as
of the day of determination or as of such other date as
may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note
be overdue, and none of the Issuer, the Indenture Trustee
or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modi-
fication of the rights and obligations of the Issuer and
the rights of the Noteholders under the Indenture at any
time by the Issuer with the consent of the Noteholders of
Notes evidencing not less than a majority of the princi-
pal amount of the Notes Outstanding. The Indenture also
contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount
of the Notes Outstanding, on behalf of all Noteholders,
to waive compliance by the Issuer with certain provisions
of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or
waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon
such Noteholder and upon all future Noteholders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions
set forth in the Indenture without the consent of the
Noteholders.
The term "Issuer", as used in this Note, in-
cludes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under
certain circumstances, to merge or consolidate, subject
to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form
in denominations as provided in the Indenture, subject to
certain limitations therein set forth.
This Note and the Indenture shall be governed
by, and construed in accordance with the laws of the
State of New York.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest
on this Note at the times, place and rate, and in the
coin or currency herein prescribed.
Anything herein to the contrary notwithstand-
ing, except as expressly provided in the Basic Documents,
none of ________________, in its individual capacity,
______________________ in its individual capacity, any
owner of a beneficial interest in the Issuer, or any of
their respective partners, beneficiaries, agents, offi-
cers, directors, employees or successors or assigns shall
be personally liable for, nor shall recourse be had to
any of them for, the payment of principal or of interest
on this Note or performance of, or omission to perform,
any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this Note,
by his acceptance hereof, agrees that, except as express-
ly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Noteholder
shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying
number of assignee:
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby
irrevocably constitutes and appoints _________________,
attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in
the premises.
Dated: */
Signature Guaranteed
*/
*/ NOTICE: The signature to this assignment must
correspond with the name of the registered owner as
it appears on the face of the within Note in every
particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed
by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
EXHIBIT B
[FORM OF NOTE DEPOSITORY AGREEMENT]
SCHEDULE A
Schedule of Receivables
[Provided to the Indenture Trustee at the Closing]
APPENDIX A
DEFINITIONS AND USAGE
Usage
The following rules of construction and usage
shall be applicable to any agreement or instrument that
is governed by this Appendix:
(a) All terms defined in this Appendix shall
have the defined meanings when used in any agreement or
instrument governed hereby and in any certificate or
other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or in-
strument governed hereby and in any certificate or other
document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such agree-
ment, instrument, certificate or other document, and
accounting terms partly defined in this Appendix or in
any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the
respective meanings given to them under generally accept-
ed accounting principles as in effect on the date of such
agreement or instrument. To the extent that the defini-
tions of accounting terms in this Appendix or in any such
agreement, instrument, certificate or other document are
inconsistent with the meanings of such terms under gener-
ally accepted accounting principles, the definitions
contained in this Appendix or in any such agreement,
instrument, certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder"
and words of similar import when used in an agreement or
instrument refer to such agreement or instrument as a
whole and not to any particular provision or subdivision
thereof; references in an agreement or instrument to
"Article," "Section" or another subdivision or to an
attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to
such agreement or instrument; and the term "including"
means "including without limitation."
(d) The definitions contained in this Appendix
are equally applicable to both the singular and plural
forms of such terms and to the masculine as well as to
the feminine and neuter genders of such terms.
(e) Any agreement, instrument, certificate or
statute defined or referred to below or in any agreement
or instrument that is governed by this Appendix means
such agreement, instrument, certificate or statute as
from time to time amended, modified or supplemented,
including (in the case of agreements, instruments or
certificate) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes
and includes (in the case of agreements, instruments or
certificate) references to all attachments thereto and
instruments incorporated therein. References to a Person
are also to its permitted successors and assigns.
Definitions
"Accrual Period" shall mean, with respect to
any Distribution Date and any Class of Notes, the period
from and including the previous Distribution Date (or, in
the case of the first Distribution Date, the Closing
Date) to but excluding such Distribution Date.
"Accrued Certificate Interest" shall mean, with
respect to any Distribution Date, the sum of the
Certificateholders' Monthly Accrued Interest for such
Distribution Date and the Certificateholders' Interest
Carryover Shortfall for such Distribution Date.
"Accrued Note Interest" shall mean, with re-
spect to any Distribution Date, the sum of the
Noteholders' Monthly Accrued Interest for such Distribu-
tion Date and the Noteholders' Interest Carryover Short-
fall for such Distribution Date.
"Act" shall have the meaning specified in
Section 11.3(a) of the Indenture.
"Administration Agreement" shall mean the
Administration Agreement, dated as of _________ __, ____,
by and among the Administrator, the Issuer and the Inden-
ture Trustee.
"Administrator" shall mean NationsBank, N.A.,
in its capacity as administrator under the Administration
Agreement, or any successor Administrator thereunder.
"Advance" shall mean the amount, as of the last
day of a Collection Period, which the Servir is required
to advance on the respective Receivable pursuant to
Section 4.4 of the Sale and Servicing Agreement.
"Advance Reserve Withdrawal" shall mean, as of
the last day of the Collection Period and with respect to
each Receivable (other than a Defaulted Receivable), the
amount withdrawn from the Reserve Account equal to the
excess, if any, of (x) the amount of interest due on such
Receivable at its applicable Contract Rate, over (y) the
interest actually received by the Servicer with respect
to such Receivable (whether from the Obligor, [the Yield
Supplement Agreement] or payments of the Purchase Amount)
during or with respect to such Collection Period .
"Affiliate" shall mean, with respect to any
specified Person, any other Person controlling or con-
trolled by or under common control with such specified
Person. For the purposes of this definition, "control"
when used with respect to any Person shall mean the power
to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Amount Financed" in respect of a Receivable
means the amount advanced under the Receivable and relat-
ed costs and shown as such in the contract evidencing
such Receivable and as disclosed for federal Truth-in-
Lending Act purposes.
"Applicable Tax State" shall mean, as of any
date of determination, each state as to which any of the
following is then applicable: (a) a state in which the
Owner Trustee maintains its Corporate Trust Office, (b) a
state in which the Owner Trustee maintains its principal
executive offices, and (c) a state in which the Servicer
regularly conducts servicing and collection operations
other than purely ministerial activities and which relate
to a material portion of the Receivables.
"Authenticating Agent" shall have the meaning
specified in Section 2.14 of the Indenture.
"Authorized Officer" shall mean, (i) with
respect to the Issuer, any officer of the Owner Trustee
who is authorized to act for or on behalf of the Owner
Trustee in matters relating to the Issuer and who is
identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplement-
ed from time to time thereafter) and, for so long as the
Administration Agreement is in full force and effect, any
officer of the Administrator who is authorized to act for
the Administrator in matters relating to the Issuer and
to be acted upon by the Administrator pursuant to the
Administration Agreement; and (ii) with respect to the
Indenture Trustee or the Owner Trustee, any officer
within the Corporate Trust Office of the Indenture Trust-
ee or the Owner Trustee, as the case may be, including
any vice president, assistant vice president, secretary,
assistant secretary or any other officer of the Indenture
Trustee or the Owner Trustee, as the case may be, custom-
arily performing functions similar to those performed by
any of the above designated officers and also, with
respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowl-
edge of and familiarity with the particular subject and
shall also mean, with respect to the Owner Trustee, any
officer of the Administrator.
"Available Funds" shall mean, for any Distribu-
tion Date, the sum of the Available Interest and the
Available Principal.
"Available Interest" shall mean, with respect
to any Distribution Date, [the excess of (a)] the sum of
(i) Interest Collections for such Distribution Date,
[(ii) the Yield Supplement Deposit Amount for such Dis-
tribution Date], [(iii) [all Advances][the proceeds of
any Advance Reserve Withdrawal] made by the Servicer with
respect to such Distribution Date], [(iv) Investment
Earnings for such Distribution Date,] [(v) the payments,
if any, received under the Interest Rate Cap for such
Distribution Date,] [and (vi) the Net Trust Swap Receipt,
if any, for such Distribution Date], [over (b) the amount
of Outstanding Advances to be reimbursed on or with
respect to such Distribution Date].
"Available Principal" shall mean, with respect
to any Distribution Date, the sum of the following
amounts with respect to the preceding Collection Period:
(i) that portion of all Collections on the Receivables
allocable to principal in accordance with the terms of
the Receivables and the Servicer's customary servicing
procedures; (ii) to the extent attributable to principal,
the Purchase Amount received with respect to each Receiv-
able repurchased by the Sellers or purchased by the
Servicer under an obligation which arose during the
related Collection Period; and (iii) all Liquidation
Proceeds, to the extent allocable to principal, received
during such Collection Period. "Available Principal" on
any Distribution Date shall exclude all payments and
proceeds of any Receivables the Purchase Amount of which
has been distributed on a prior Distribution Date.
"Available Reserve Amount" shall mean, with
respect to any Distribution Date, the amount of funds on
deposit in the Reserve Account on such Distribution Date
[(other than Investment Earnings)] [ less the Certificate
Interest Reserve Amount with respect to such Distribution
Date, in each case,] before giving effect to any reduc-
tion thereto on such Distribution Date.
"Balloon Receivable" shall mean monthly payment
receivables secured by new or used automobiles or light
trucks with a final scheduled payment which is greater by
a more than a minimal amount from the preceding fixed
level monthly installments.
"Bankruptcy Code" shall mean the United States
Bankruptcy Code, 11 U.S.C. 101 et seq., as amended.
"Basic Documents" shall mean the Certificate of
Trust, the Trust Agreement, the Sale and Servicing Agree-
ment, the Indenture, the Administration Agreement, [the
Yield Supplement Agreement,] the Note Depository Agree-
ment, [the Certificate Depository Agreement] and the
other documents and certificates delivered in connection
therewith.
"Benefit Plan" shall have the meaning specified
in Section 3.4(b) of the Trust Agreement.
["Book-Entry Certificates" shall mean a benefi-
cial interest in the Certificates, ownership and trans-
fers of which shall be made through book entries by a
Clearing Agency as described in Section 3.11 of the Trust
Agreement.]
"Book-Entry Notes" shall mean a beneficial
interest in the Notes, ownership and transfers of which
shall be made through book entries by a Clearing Agency
as described in Section 2.11 of the Indenture.
"Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions
or trust companies in New York, New York, Charlotte,
North Carolina, Atlanta, Georgia or Dallas, Texas are
authorized or obligated by law, regulation or executive
order to remain closed.
"Business Trust Statute" shall mean Chapter 38
of Title 12 of the Delaware Code, 12 Delaware Code SECTION 3801
et seq., as amended.
"Certificate" shall mean a physical certificate
evidencing the beneficial interest of a Certificateholder
in the property of the Trust, substantially in the form
of Exhibit A or Exhibit B to the Trust Agreement, as
applicable. Such certificate shall entitle the Certifi-
cateholder thereof to distributions of principal and
interest pursuant to the Trust Agreement from collections
and other proceeds in respect of the Owner Trust Estate;
provided, however, that the Owner Trust Estate has been
pledged to the Indenture Trustee to secure payment of the
Notes and that the rights of Certificateholders to re-
ceive distributions on the Certificates are subordinated
to the rights of the Noteholders as described in the Sale
and Servicing Agreement, the Indenture and the Trust
Agreement.
"Certificate Balance" equals initially, $
and, thereafter, equals the initial Certificate Bal-
ance, reduced by all amounts allocable to principal
previously distributed to Certificateholders. [The
Certificate Balance shall mean, as the context so re-
quires, (i) with respect to all of the Certificates, an
amount equal to, initially, the Initial Certificate
Balance and, thereafter, an amount equal to the Initial
Certificate Balance, reduced by all amounts distributed
to the Certificateholders and allocable to principal or
(ii) with respect to any Certificate, an amount equal to,
initially, the initial denomination of such Certificate
and, thereafter, an amount equal to such initial denomi-
nation, reduced by all amounts distributed in respect of
such Certificate and allocable to principal; provided,
that in determining whether the Certificateholders of
Certificates evidencing the requisite portion or percent-
age of the aggregate Certificate Balance have given any
request, demand, authorization, direction, notice, con-
sent, or waiver hereunder or under any Basic Document,
Certificates owned by the Issuer, any other obligor upon
the Certificates, the Sellers, the Servicer or any Affil-
iate of any of the foregoing Persons shall be disregarded
and deemed to be excluded from the Certificate Balance,
except that, in determining whether the Indenture Trustee
and Owner Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice,
consent, or waiver, only Certificates that a Responsible
Officer of the Indenture Trustee, if applicable, and an
Authorized Officer of the Owner Trustee with direct
responsibility for the administration of the Trust Agree-
ment, if applicable, knows to be so owned shall be so
disregarded. Certificates so owned that have been
pledged in good faith may be regarded as included in the
Certificate Balance if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trust-
ee, as applicable, the pledgee's right so to act with
respect to such Certificates and that the pledgee is not
the Issuer, any other obligor upon the Certificates, the
Sellers, the Servicer or any Affiliate of any of the
foregoing Persons.]
"Certificate Depository Agreement" shall mean
the agreement dated the Closing Date, by and among the
Trust, the Owner Trustee, the Administrator and The
Depository Trust Company, as the initial Clearing Agency,
relating to the Certificates, substantially in the form
of Exhibit C to the Trust Agreement.
"Certificate Distribution Account" shall mean
the account established and maintained as such pursuant
to Section 4.1(c) of the Sale and Servicing Agreement.
["Certificate Interest Reserve Amount" shall
mean the lesser of (i) $ less the amount of any
application of the Certificate Interest Reserve Amount to
pay interest on the Certificates on any prior Distribu-
tion Date and (ii) % of the Certificate Balance on such
Distribution Date (before giving effect to any reduction
thereof on such Distribution Date)[; provided, however,
that the Certificate Interest Reserve Amount shall be
zero subsequent to any reduction by any Rating Agency to
less than " " or its equivalent, or withdrawal by any
Rating Agency, of its rating of [the] [any class of]
Notes, unless such rating has been restored].]
"Certificate of Trust" shall mean the Certifi-
cate of Trust in the form of Exhibit C to the Trust
Agreement filed for the Trust pursuant to Section 3810(a)
of the Business Trust Statute.
["Certificate Owner" shall mean, with respect
to any Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency or on the
books of a Person maintaining an account with such Clear-
ing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).]
"Certificate Paying Agent" shall mean any
paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement and shall initially be
the Owner Trustee.
"Certificate Pool Factor" shall mean, as of the
close of business on the last day of a Collection Period,
a seven-digit decimal figure equal to the Certificate
Balance (after giving effect to any reductions therein to
be made on the immediately following Distribution Date)
divided by the Initial Certificate Balance. The Certifi-
cate Pool Factor will be 1.0000000 as of the Closing
Date; thereafter, the Certificate Pool Factor will de-
cline to reflect reductions in the Certificate Balance.
"Certificate Rate" shall mean ____% per annum.
Interest with respect to the Certificates shall be com-
puted on the basis of a 360-day year consisting of twelve
30-day months for all purposes of this Agreement and the
other Basic Documents.
"Certificate Register" and "Certificate Regis-
trar" shall have the respective meanings specified in
Section 3.4 of the Trust Agreement.
"Certificate Underwriters" shall mean the
underwriters named in Schedule I to the Certificate
Underwriting Agreement.
"Certificate Underwriting Agreement" shall mean
the Certificate Underwriting Agreement by and among the
Sellers, and ___________, as representative of the sever-
al Certificate Underwriters.
"Certificateholder" shall mean a Person in
whose name a Certificate is registered in the Certificate
Register.
"Certificateholders' Distribution Amount" shall
mean, with respect to any Distribution Date, the sum of
the Certificateholders' Principal Distribution Amount and
the Accrued Certificate Interest.
"Certificateholders' Interest Carryover Short-
fall" shall mean, with respect to any Distribution Date,
the excess of the sum of the Certificateholders' Monthly
Accrued Interest for the preceding Distribution Date and
any outstanding Certificateholders' Interest Carryover
Shortfall from the close of business on such preceding
Distribution Date, over the amount in respect of interest
that is actually deposited in the Certificate Distribu-
tion Account on such preceding Distribution Date, plus
[thirty (30) days'] interest on such excess, to the
extent permitted by law, at the Certificate Rate.
"Certificateholders' Monthly Accrued Interest"
shall mean, with respect to any Distribution Date, thirty
(30) days of interest at the Certificate Rate on the
Certificate Balance as of the immediately preceding
Distribution Date, after giving effect to all distribu-
tions of principal to the Certificateholders on or prior
to such Distribution Date (or, in the case of the first
Distribution Date, __________ (__) days of interest at
the Certificate Rate on the Initial Certificate Balance).
"Certificateholders' Monthly Principal" shall
mean[, with respect to any Distribution Date prior to the
Distribution Date, the Certificateholders' Percentage of
the Regular Principal.]
"Certificateholders' Percentage" shall mean,
(i) for each Distribution Date to and including the later
to occur of (x) the Distribution Date next succeeding the
Distribution Date on which the principal amount of the
Notes is reduced to zero [and (y) the 199 Distribu-
tion Date], zero, and (ii) for each Distribution Date
thereafter to and including the Distribution Date on
which the Certificate Balance is reduced to zero, the
percentage equivalent of a fraction, the numerator of
which is the outstanding Certificate Balance on the
Distribution Date immediately preceding the Distribution
Date for which the Certificateholders' Percentage is
being calculated (after giving effect to all distribu-
tions made on such immediately preceding Distribution
Date) and the denominator of which is the Pool Balance on
the last day of the Collection Period second preceding
the Distribution Date for which the Certificateholders'
Percentage is being calculated, [unless the Reserve
Account balance is less than [ % of] the Specified
Reserve Account Balance, then the Certificateholders'
Percentage shall be %] [; provided, however, upon any
reduction or withdrawal by any Rating Agency of its
rating of [the] [any class of] Notes, then, with respect
to each Distribution Date thereafter until the principal
amount of all the Notes is paid in full or such rating is
restored, the Certificateholders' Percentage shall mean
zero].
"Certificateholders' Principal Carryover Short-
fall" shall mean, as of the close of business on any
Distribution Date, the excess of the Certificateholders'
Monthly Principal and any outstanding Certificateholders'
Principal Carryover Shortfall from the preceding Distri-
bution Date over the amount in respect of principal that
is actually deposited in the Certificate Distribution
Account.
"Certificateholders' Principal Distribution
Amount" shall mean, with respect to any Distribution
Date, the sum of the Certificateholders' Monthly Princi-
pal for such Distribution Date and the
Certificateholders' Principal Carryover Shortfall as of
the close of the preceding Distribution Date; provided,
however, that the Certificateholders' Principal Distribu-
tion Amount shall not exceed the Certificate Balance. [In
addition, on the Final Scheduled Distribution Date, the
principal required to be distributed to Certificatehold-
ers will include the lesser of (a) any principal due and
remaining unpaid on each Simple Interest Receivable, in
each case, in the Trust as of the Final Scheduled Maturi-
ty Date or (b) the portion of the amount required to be
advanced under clause (a) above that is necessary (after
giving effect to the other amounts to be deposited in the
Certificate Distribution Account on such Distribution
Date and allocable to principal) to reduce the Certifi-
cate Balance to zero, and, in the case of clauses (a)
and (b), remaining after any required distribution in
respect of the Notes.]
"Class" means a class of Notes, which may be
the Class A-1 Notes, the Class A-2 Notes or the Class A-3
Notes.
"Class A-1 Final Scheduled Distribution Date"
shall mean the ____________ Distribution Date.
"Class A-1 Noteholder" shall mean the Person in
whose name a Class A-1 Note is registered on the Note
Register.
"Class A-1 Notes" shall mean the $______ __%
Class A-1 Asset Backed Notes issued by the Trust pursuant
to the Indenture, substantially in the form of Exhibit A-
1 to the Indenture.
"Class A-1 Rate" shall mean __% per annum.
Interest with respect to the Class A-1 Notes shall be
computed on the basis of [actual days elapsed and a 360-
day year] [a 360-day year consisting of twelve 30-day
months] for all purposes of the Sale and Servicing Agree-
ment and the other Basic Documents.
"Class A-2 Final Scheduled Distribution Date"
shall mean the ____________ Distribution Date.
"Class A-2 Noteholder" shall mean the Person in
whose name a Class A-2 Note is registered on the Note
Register.
"Class A-2 Notes" shall mean the $______ __%
Class A-2 Asset Backed Notes issued by the Trust pursuant
to the Indenture, substantially in the form of Exhibit A-
2 to the Indenture.
["Class A-2 Rate" shall mean __% per annum.
Interest with respect to the A-2 Notes shall be computed
on the basis of a 360-day year consisting of twelve 30-
day months for all purposes of the Sale and Servicing
Agreement and the other Basic Documents.]
"Class A-3 Final Scheduled Distribution Date"
shall mean the ____________ Distribution Date.
"Class A-3 Noteholder" shall mean the Person in
whose name a Class A-3 Note is registered on the Note
Register.
["Class A-3 Notes" shall mean the $______ __%
Class A-3 Asset Backed Notes issued by the Trust pursuant
to the Indenture, substantially in the form of Exhibit A-
3 to the Indenture.]
["Class A-3 Rate" shall mean __% per annum.
Interest with respect to the Class A-3 Notes shall be
computed on the basis of a 360-day year consisting of
twelve 30-day months for all purposes of the Sale and
Servicing Agreement and the other Basic Documents.]
"Clearing Agency" shall mean an organization
registered as a "clearing agency" pursuant to Section 17A
of the Exchange Act.
"Clearing Agency Participant" shall mean a
broker, dealer, bank, other financial institution or
other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" shall mean _________ __, ____.
"Code" shall mean the Internal Revenue Code of
1986, as amended, and Treasury Regulations promulgated
thereunder.
"Collateral" shall have the meaning specified
in the Granting Clause of the Indenture.
"Collection Account" shall mean the account or
accounts established and maintained as such pursuant to
Section 4.1(a) of the Sale and Servicing Agreement.
"Collection Period" shall mean each calendar
month during the term of this Agreement or, in the case
of the initial Collection Period, the period from the
Cutoff Date to and including the last day of the month in
which the Cutoff Date occurred.
"Collections" shall mean all amounts collected
by the Servicer (from whatever source) on or with respect
to the Receivables.
"Commission" shall mean the Securities and
Exchange Commission.
"Computer Tape" shall mean the computer tape
generated by the Sellers which provides information
relating to the Receivables and which was used by the
Sellers in selecting the Receivables conveyed to the
Trust hereunder.
"Contract Rate" shall mean, with respect to a
Receivable, the rate per annum of interest charged to the
Obligor on the outstanding Principal Balance of such
Receivable in accordance with the terms thereof.
"Corporate Trust Office" shall mean, (i) with
respect to the Owner Trustee, the principal corporate
trust office of the Owner Trustee located at ___________
_______________, Delaware _____ or at such other address
as the Owner Trustee may designate from time to time by
notice to the Certificateholders and the Depositors, or
the principal corporate trust office of any successor
Owner Trustee (the address of which the successor Owner
Trustee will notify the Certificateholders and the Depos-
itors); and (ii) with respect to the Indenture Trustee,
the principal corporate trust office of the Indenture
Trustee located at ______________, or at such other
address as the Indenture Trustee may designate from time
to time by notice to the Noteholders and the Issuer, or
the principal corporate trust office of any successor
Indenture Trustee (the address of which the successor
Indenture Trustee will notify the Noteholders and the
Issuer).
"Cutoff Date" shall mean _________ __, ____.
"Cutoff Date Principal Balance" means, with
respect to any Receivable, the initial Principal Balance
of such Receivable minus the sum of the portion of all
payments received under such Receivable from or on behalf
of the related Obligor on or prior to the close of busi-
ness of the Servicer on the Cutoff Date and allocable to
principal in accordance with the terms of the Receivable
and the Servicer's customary servicing procedures.
"Dealer" shall mean the dealer who sold a
Financed Vehicle and who originated and assigned the
respective Receivable to a Seller under an existing
Dealer Agreement and Dealer Assignment.
"Dealer Agreement" means an agreement between a
Seller and a Dealer relating to the sale of Receivables
to such Seller and all documents and instruments (other
than the related Dealer Assignments) relating thereto.
"Dealer Assignment" means the executed assign-
ment conveying a Receivable to a Seller.
"Default" shall mean any occurrence that is, or
with notice or the lapse of time or both would become, an
Event of Default.
"Defaulted Receivable" shall mean, with respect
to any Collection Period, a Receivable (other than a
Purchased Receivable) which the Servicer, on behalf of
the Trust, has determined to charge off during such
Collection Period in accordance with its customary ser-
vicing procedures.
"Definitive Certificates" shall have the mean-
ing specified in Section 3.11 of the Trust Agreement.
"Definitive Notes" shall have the meaning
specified in Section 2.11 of the Indenture.
"Delivery", when used with respect to Reserve
Account Property, shall mean:
(a) with respect to bankers' acceptances,
commercial paper, negotiable certificates of deposit
and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC
and are susceptible of physical delivery, transfer
thereof to the Indenture Trustee or its nominee or
custodian by physical delivery to the Indenture
Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or
its nominee or custodian or endorsed in blank, and,
with respect to a certificated security (as defined
in Section 8-102 of the UCC) transfer thereof (i) by
delivery of such certificated security endorsed to,
or registered in the name of, the Indenture Trustee
or its nominee or custodian or endorsed in blank to
a financial intermediary (as defined in Section
8-313 of the UCC) and the making by such financial
intermediary of entries on its books and records
identifying such certificated securities as belong-
ing to the Indenture Trustee or its nominee or
custodian and the sending by such financial interme-
diary of a confirmation of the purchase of such
certificated security by the Indenture Trustee or
its nominee or custodian, or (ii) by delivery there-
of to a "clearing corporation" (as defined in Sec-
tion 8-102(3) of the UCC) and the making by such
clearing corporation of appropriate entries on its
books reducing the appropriate securities account of
the transferor and increasing the appropriate secu-
rities account of a financial intermediary by the
amount of such certificated security, the identifi-
cation by the clearing corporation of the certifi-
cated securities for the sole and exclusive account
of the financial intermediary, the maintenance of
such certificated securities by such clearing corpo-
ration or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either sub-
ject to the clearing corporation's exclusive con-
trol, the sending of a confirmation by the financial
intermediary of the purchase by the Indenture Trust-
ee or its nominee or custodian of such securities
and the making by such financial intermediary of
entries on its books and records identifying such
certificated securities as belonging to the Inden-
ture Trustee or its nominee or custodian (all of the
foregoing, "Physical Property"), and, in any event,
any such Physical Property in registered form shall
be in the name of the Indenture Trustee or its
nominee or custodian; and such additional or alter-
native procedures as may hereafter become appropri-
ate to effect the complete transfer of ownership of
any such Reserve Account Property to the Indenture
Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by
the U.S. Treasury, the Federal Home Loan Mortgage
Corporation or by the Federal National Mortgage
Association that is a book-entry security held
through the Federal Reserve System pursuant to
federal book-entry regulations, the following proce-
dures, all in accordance with applicable law, in-
cluding applicable federal regulations and Articles
8 and 9 of the UCC: book-entry registration of such
Reserve Account Property to an appropriate book-
entry account maintained with a Federal Reserve Bank
by a financial intermediary that is also a "deposi-
tory" pursuant to applicable federal regulations and
issuance by such financial intermediary of a deposit
advice or other written confirmation of such book-
entry registration to the Indenture Trustee or its
nominee or custodian of the purchase by the Inden-
ture Trustee or its nominee or custodian of such
book-entry securities; the making by such financial
intermediary of entries in its books and records
identifying such book-entry security held through
the Federal Reserve System pursuant to federal book-
entry regulations as belonging to the Indenture
Trustee or its nominee or custodian and indicating
that such custodian holds such Reserve Account
Property as agent for the Indenture Trustee or its
nominee or custodian; and such additional or alter-
native procedures as may hereafter become appropri-
ate to effect complete transfer of ownership of any
such Reserve Account Property to the Indenture
Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Reserve Ac-
count Property that is an uncertificated security
under Article 8 of the UCC and that is not governed
by clause (b) above, registration on the books and
records of the issuer thereof in the name of the
financial intermediary, the sending of a confirma-
tion by the financial intermediary of the purchase
by the Indenture Trustee or its nominee or custodian
of such uncertificated security, the making by such
financial intermediary of entries on its books and
records identifying such uncertificated certificates
as belonging to the Indenture Trustee or its nominee
or custodian.
"Deposit Date" shall mean the business day
immediately proceeding each Distribution Date.
"Depositor" shall mean a Seller in its capacity
as a Depositor under the Trust Agreement.
"Depository Agreements" shall mean the Note
Depository Agreement and the [Certificate Depository
Agreement], collectively.
"Determination Date" shall mean, with respect
to any Collection Period, the fifth Business Day preced-
ing each Distribution Date.
"Distribution Date" shall mean the _________
(_____) day of each calendar month or, if such day is not
a Business Day, the next succeeding Business Day.
"Electronic Ledger" shall mean the electronic
master record of the motor vehicle retail installment
sales contracts and motor vehicle retail installment
loans of the Sellers.
"Eligible Deposit Account" means either (a) a
segregated account with an Eligible Institution or (b) a
segregated trust account with the trust department of a
depository institution organized under the laws of the
United States of America or any one of the states thereof
or the District of Columbia (or any domestic branch of a
foreign bank), having trust powers and acting as trustee
for funds deposited in such account, so long as the long
term unsecured debt rating of such depository institution
shall have a credit rating from each Rating Agency in one
of its generic rating categories which signifies invest-
ment grade.
"Eligible Institution" means any depository
institution with trust powers, organized under the laws
of the United States or any state thereof, having capital
and surplus in excess of $50,000,000, the deposits of
which are insured to the full extent permitted by law by
the Federal Deposit Insurance Corporation, which is
subject to supervision and examination by federal or
state banking authorities and which has (i) a rating of
at least P-1 from Moody's and A-1+ from S&P with respect
to short-term deposit obligations, or (ii) if such insti-
tution has issued long-term unsecured debt obligations, a
rating of A2 or higher from Moody's and AAA or higher
from S&P with respect to long-term unsecured debt obliga-
tions. If such depository institution publishes reports
of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining
authority, then the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
"Eligible Servicer" shall mean (a) any Affili-
ate of a Seller or (b) any Person which, at the time of
its appointment as Servicer or as a subservicer, which
(i) has a net worth of not less than $50,000,000, (ii) is
servicing a portfolio of motor vehicle retail installment
sales contracts and/or motor vehicle retail installment
loans, (iii) is legally qualified, and has the capacity,
to service the Receivables and (iv) has demonstrated the
ability to service a portfolio of motor vehicle retail
installment sales contracts and/or motor vehicle retail
installment loans similar to the Receivables profession-
ally and competently in accordance with standards of
skill and care that are consistent with prudent industry
standards.
"ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
"Event of Default" shall have the meaning
specified in Section 5.1 of the Indenture.
"Event of Servicing Termination" shall mean an
event specified in Section 8.1 of the Sale and Servicing
Agreement.
"Exchange Act" shall mean the Securities Ex-
change Act of 1934, as amended.
"Executive Officer" shall mean, with respect to
any corporation, the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secre-
tary or the Treasurer of such corporation and, with
respect to any partnership, any general partner thereof.
"Expenses" shall have the meaning assigned to
such term in Section 8.2 of the Trust Agreement.
"Final Scheduled Distribution Date" shall mean,
with respect to the Certificates, that Distribution Date
specified in the related prospectus supplement upon which
the last scheduled payment of principal and interest is
made.
"Final Scheduled Maturity Date" shall mean
__________, ____].
"Financed Vehicle" shall mean the Motor Vehi-
cle, together with all accessions thereto, securing an
Obligor's indebtedness under a Receivable.
"General Partner" shall mean [NB-SPC], a Dela-
ware corporation.
"Grant" shall mean to mortgage, pledge, bar-
gain, sell, warrant, alienate, remise, release, convey,
assign, transfer, create, and to grant a lien upon and a
security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the Indenture.
A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options
(but none of the obligations) of the granting party
thereunder, including the immediate and continuing right
to claim for, collect, receive and give receipt for
principal and interest payments in respect of the Collat-
eral and all other monies payable thereunder, to give and
receive notices and other communications, to make waivers
or other agreements, to exercise all rights and options,
to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that
the granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Indemnified Parties" shall have the meaning
assigned to such term in Section 8.2 of the Trust Agree-
ment.
"Indenture" shall mean the Indenture, dated as
of _______ __, ____, by and between the Trust and the
Indenture Trustee.
"Indenture Trust Accounts" shall have the
meaning specified in Section 4.1(d) of the Sale and
Servicing Agreement.
"Indenture Trust Account Property" shall mean
all amounts on deposit in and credited to the Indenture
Trust Accounts, including any Permitted Investments
(whether in the form of deposit accounts, Physical Prop-
erty, book-entry securities, uncertificated securities or
otherwise), and all proceeds thereof.
"Indenture Trustee" shall mean __________, a
_________ banking corporation, as Indenture Trustee under
the Indenture, or any successor Indenture Trustee under
the Indenture.
"Independent" shall mean, when used with re-
spect to any specified Person, that such Person (a) is in
fact independent of the Issuer, any other obligor on the
Notes, the Sellers and any Affiliate of any of the fore-
going Persons, (b) does not have any direct financial
interest or any material indirect financial interest in
the Issuer, any such other obligor, the Sellers or any
Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the
Sellers or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certifi-
cate or opinion to be delivered to the Indenture Trustee
under the circumstances described in, and otherwise
complying with, the applicable requirements of Section
11.1 of the Indenture, made by an Independent appraiser
or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in
this Indenture and that the signer is Independent within
the meaning thereof.
"Initial Certificate Balance" shall mean, as
the context so requires, (i) with respect to all of the
Certificates, $_____________ or (ii) with respect to any
Certificate, an amount equal to the initial denomination
of such Certificate.
"Initial Pool Balance" shall mean
$______________.
"Insolvency Event" shall mean, with respect to
any Person, (i) the making of a general assignment for
the benefit of creditors, (ii) the filing of a voluntary
petition in bankruptcy, (iii) being adjudged a bankrupt
or insolvent, or having had entered against such Person
an order for relief in any bankruptcy or insolvency
proceeding, (iv) the filing by such Person of a petition
or answer seeking reorganization, arrangement, composi-
tion, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, (v) the
filing by such Person of an answer or other pleading
admitting or failing to contest the material allegations
of a petition filed against such Person in any proceeding
specified in (vii) below, (vi) seeking, consent to or
acquiescing in the appointment of a trustee, receiver or
liquidator of such Person or of all or any substantial
part of the assets of such Person or (vii) the failure to
obtain dismissal within 60 days of the commencement of
any proceeding against such Person seeking reorganiza-
tion, arrangement, composition, readjustment, liquida-
tion, dissolution or similar relief under any statute,
law or regulation, or the entry of any order appointing a
trustee, liquidator or receiver of such Person or of such
Person's assets or any substantial portion thereof.
"Insurance Policies" mean all comprehensive and
collision, fire and theft insurance policies maintained
by the Obligors naming a Seller as an additional insured
or loss payee and any credit and disability and physical
damage insurance policies maintained by the Obligors and
benefitting any holder of the Receivables.
"Interest Collections" shall mean, with respect
to any Distribution Date, the sum of the following
amounts with respect to the preceding Collection Period:
(i) that portion of all Collections on the Receivables
allocable to interest in accordance with the terms of the
Receivables and the Servicer's customary servicing proce-
dures; (ii) all Liquidation Proceeds, to the extent
allocable to interest, received during such Collection
Period; (iii) all Recoveries; and (iv) to the extent
attributable to accrued interest, the Purchase Amount
with respect to each Receivable repurchased by the Sell-
ers or purchased by the Servicer under an obligation
which arose during such Collection Period. "Interest
Collections" for any Distribution Date shall exclude all
payments and proceeds of any Receivables the Purchase
Amount of which has been distributed on a prior Distribu-
tion Date.
"Investment Earnings" shall mean all investment
earnings on any Indenture Trust Account Property net of
losses and investment expenses related thereto.
"Issuer" shall mean the Trust unless a succes-
sor replaces it and, thereafter, means the successor and
for purposes of any provision contained in the Indenture
and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" shall mean
a written order or request signed in the name of the
Issuer by any one of its Authorized Officers and deliv-
ered to the Indenture Trustee.
"Lien" shall mean a security interest, lien,
charge, pledge, equity, or encumbrance of any kind other
than tax liens, mechanics' liens, and any liens which
attach to the respective Receivable by operation of law.
"Limited Partnership Act" shall mean the Dela-
ware Revised Uniform Limited Partnership Act, Chapter 17
of Title 6 of the Delaware Code, 17 Delaware Code SECTION 101
et seq., as amended
"Liquidation Proceeds" shall mean, with respect
to any Distribution Date and any Receivable which has
become a Defaulted Receivable during the related Collec-
tion Period, the monies collected with respect to such
Defaulted Receivable (from whatever source, including
from the Dealer Agreements and Insurance Policies, sale
of a Financed Vehicle or recovery of a deficiency bal-
ance) during the Collection Period in which such Receiv-
able became a Defaulted Receivable, net of the sum of (i)
any fees, costs or expenses incurred by the Servicer in
connection with the collection of such Receivable and the
disposition of the Financed Vehicle as permitted by
Section 3.3 of the Sale and Servicing Agreement and (ii)
any payments required by law to be remitted to the Obli-
gor, but, in any event, not less than zero. Liquidation
Proceeds shall be applied first to accrued and unpaid
interest on the Receivable and then to the Principal
Balance thereof.
"Moody's" shall mean Moody's Investors Service,
Inc.
"Motor Vehicle" means a new or used automobile,
van or light-duty truck which is the subject of a motor
vehicle retail installment sales contract originated by a
Dealer.
"NAFC" shall mean NationsBanc Auto Funding Corporation,
a limited purpose Delaware corporation, wholly-owned by
NationsBank, NA.
"Noteholder" shall mean the Person in whose
name a Note is registered on the Note Register.
"Noteholders' Accelerated Principal" means,
[with respect to each Distribution Date, ___% of the
portion, if any, of Available Funds for such Collection
Period remaining on such Distribution Date, in each case
after giving effect to the payment of (i) the Servicing
Fee[ and any overdue Servicing Fees], (ii) the interest
[due][accrued] on the Notes, (iii) the [Noteholders'
Percentage of the] Regular Principal, (iv) the interest
[due][accrued] on the Certificates, (v) the portion of
the Regular Principal distributed to the Certificatehold-
ers [pursuant to Section 4.6 of the Sale and Servicing
Agreement], and (vi) the amount, if any, required to be
deposited in the Reserve Account on such Distribution
Date [plus the excess of the amount on deposit in the
Reserve Account on such Distribution Date (after giving
effect to all deposits or withdrawals therefrom on such
Distribution Date) over the Specified Reserve Account
Balance)]..
"Noteholders' Interest Carryover Shortfall"
shall mean, with respect to any Distribution Date, the
excess of the Noteholders' Monthly Accrued Interest for
the preceding Distribution Date and any outstanding
Noteholders' Interest Carryover Shortfall on such preced-
ing Distribution Date, over the amount in respect of
interest that is actually deposited in the Note Payment
Account on such preceding Distribution Date, plus inter-
est on the amount of interest due but not paid to
Noteholders on the preceding [Distribution] [Payment]
Date, to the extent permitted by law, at the [respective]
Note Interest Rate[s] borne by [each class of] the Notes
for the [related Interest Period] [period from and in-
cluding the prior Distribution Date to but excluding such
Distribution Date] [plus 2.00% per annum].
"Noteholders' Monthly Accrued Interest" shall
mean, with respect to any Distribution Date, interest
accrued for the [related Interest Period] [period from
and including the Closing Date (in the case of the first
Distribution Date) or from and including the prior Dis-
tribution Date to but excluding such Distribution Date]
on [the] [each class of] Notes at the [respective] Note
Interest Rate [for such class] on the outstanding princi-
pal amount of the Notes [of such class] on the immediate-
ly preceding [Distribution] [Payment] Date after giving
effect to all payments of principal to the Noteholders
[of such class] on or prior to such [Distribution] [Pay-
ment] Date (or, in the case of the first [Distribution]
[Payment] Date, on the Closing Date).
"Noteholders' Monthly Principal" shall mean,
with respect to any Distribution Date, the sum of (i) the
Noteholders' Percentage of the Regular Principal plus
(ii) the Noteholders' Accelerated Principal. [Or, state
other method or formula for determining the Noteholders'
Monthly Principal.]
"Noteholders' Payment Amount" shall mean, with
respect to any Distribution Date, the sum of the
Noteholders' Principal Payment Amount and the Accrued
Note Interest.
["Noteholders' Percentage" shall mean (i) 100%
for each Distribution Date to and including the later to
occur of (x) the Distribution Date next succeeding the
Distribution Date, on which the principal amount of the
[Class A-1] Notes is reduced to zero [and (y) the 199
Distribution Date], (ii) for each Distribution Date
thereafter to and including the Distribution Date on
which the principal amount of the [Class A-3] Notes is
reduced to zero, the percentage equivalent of a fraction,
the numerator of which is the outstanding principal
amount of the Notes on the Distribution Date immediately
preceding the Distribution Date for which the
Noteholders' Percentage is being calculated (after giving
effect to all distributions made on such immediately
preceding Distribution Date) and the denominator of which
is the Pool Balance on the last day of the Collection
Period second preceding the Distribution Date for which
the Noteholders' Percentage is being calculated, [unless
the Reserve Account balance is less than [ % of] the
Specified Reserve Account Balance, then the Noteholders'
Percentage shall be %,] and (iii) zero for each Dis-
tribution Date thereafter [; provided, however, upon any
reduction or withdrawal by any Rating Agency of its
rating of [the] [any class of] Notes, then, with respect
to each Distribution Date thereafter until the principal
amount of all the Notes is paid in full or such rating is
restored, the Noteholders' Percentage shall mean 100%].
"Noteholders' Principal Carryover Shortfall"
shall mean, as of the close of any Distribution Date, the
excess of the Noteholders' Monthly Principal and any
outstanding Noteholders' Principal Carryover Shortfall
from the preceding Distribution Date over the amount in
respect of principal that is actually deposited in the
Note Payment Account.
"Noteholders' Principal Payment Amount" shall
mean, with respect to any Distribution Date, the sum of
the Noteholders' Monthly Principal for such Distribution
Date and the Noteholders' Principal Carryover Shortfall
as of the close of the preceding Distribution Date;
provided, however, that the Noteholders' Principal Pay-
ment Amount shall not exceed the outstanding principal
amount of the Notes; and provided, further, that (i) the
Noteholders' Principal Payment Amount on the [Class A-1]
Final Scheduled [Distribution] [Payment] Date shall not
be less than the amount that is necessary (after giving
effect to other amounts [on deposit and] to be deposited
in the Note Payment Account on such Distribution Date and
allocable to principal) to reduce the outstanding princi-
pal amount of the [Class A-1] Notes to zero[; (ii) the
Noteholders' Principal Payment Amount on the Class A-2
Final Scheduled [Distribution] [Payment] Date shall not
be less than the amount that is necessary (after giving
effect to other amounts [on deposit and] to be deposited
in the Note Payment Account on such Distribution Date and
allocable to principal) to reduce the outstanding princi-
pal amount of the Class A-2 Notes to zero; and (iii) on
the Class A-3 Final Scheduled [Distribution] [Payment]
Date the Noteholders' Principal Payment Amount shall not
be less than the amount that is necessary (after giving
effect to other amounts [on deposit and] to be deposited
in the Note Payment Account on such Distribution Date and
allocable to principal) to reduce the outstanding princi-
pal amount of the Class A-3 Notes to zero].
"Note Depository Agreement" shall mean the
agreement dated __________ __, ____, by and among the
Trust, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency, relating to the
Notes, substantially in the form of Exhibit B to the
Indenture.
["Note Interest Rate" shall mean the Class A-1
Rate, the Class A-2 Rate or the Class A-3 Rate, as appli-
cable.]
"Note Owner" shall mean, with respect to any
Book-Entry Note, the Person who is the beneficial owner
of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining
an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect partici-
pant, in each case in accordance with the rules of such
Clearing Agency).
"Note Paying Agent" shall mean the Indenture
Trustee or any other Person that meets the eligibility
standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Issuer to
make payments to and distributions from the Collection
Account and the Note Payment Account, including payment
of principal of or interest on the Notes on behalf of the
Issuer.
"Note Payment Account" shall mean the account
established and maintained as such pursuant to Section
4.1(b) of the Sale and Servicing Agreement.
"Note Pool Factor" shall mean, with respect to
each Class of Notes as of the close of business on the
last day of a Collection Period, a seven-digit decimal
figure equal to the outstanding principal balance of such
Class of Notes (after giving effect to any reductions
thereof to be made on the immediately following Distribu-
tion Date) divided by the original outstanding principal
balance of such Class of Notes. The Note Pool Factor
will be 1.0000000 as of the Closing Date; thereafter, the
Note Pool Factor will decline to reflect reductions in
the outstanding principal amount of such Class of Notes.
"Note Register" and "Note Registrar" shall have
the respective meanings specified in Section 2.5 of the
Indenture.
"Note Underwriting Agreement" shall mean the
Note Underwriting Agreement by and among the Sellers and
, as representative of the several Note
Underwriters.
"Notes" shall mean the Class A-1 Notes, the
Class A-2 Notes[ and the Class A-3 Notes], collectively.
"Obligor" means the purchaser or the co-pur-
chasers of the Financed Vehicle purchased in part or in
whole by the execution and delivery of the related Re-
ceivable or the borrower or co-borrowers under the relat-
ed Receivable the proceeds of which were applied to
purchase in part or in whole the Financed Vehicle, and
any other co-signer, guarantor or surety of the Receiv-
able who owes or may be liable for payments under such
Receivable.
"Officer's Certificate" shall mean (i) with
respect to the Trust, a certificate signed by any Autho-
rized Officer of the Trust and (ii) with respect to a
Seller or the Servicer, a certificate signed by the
chairman of the board, the president, any executive vice
president, any senior vice president, any vice president,
the treasurer, any assistant treasurer, the controller or
any assistant controller [(or any director or officer
similar or equivalent to any of the foregoing in this
clause (ii))] of such Seller or the Servicer, as applica-
ble.
"Opinion of Counsel" shall mean a written
opinion of counsel which counsel shall be acceptable to
the Indenture Trustee, the Owner Trustee or the Rating
Agencies, as applicable.
"Optional Purchase Percentage" shall mean 5%.
"Outstanding" shall mean with respect to the
Notes, as of the date of determination, all Notes there-
tofore authenticated and delivered under the Indenture
except:
(i) Notes theretofore cancelled by the
Note Registrar or delivered to the Note Regis-
trar for cancellation;
(ii) Notes or portions thereof the pay-
ment for which money in the necessary amount
has been theretofore deposited with the Inden-
ture Trustee or any Note Paying Agent in trust
for the Noteholders of such Notes (provided,
however, that if such Notes are to be redeemed,
notice of such redemption has been duly given
pursuant to this Indenture or provision for
such notice has been made, satisfactory to the
Indenture Trustee); and
(iii) Notes in exchange for or in lieu of
which other Notes have been authenticated and
delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a
bona fide purchaser;
provided, that in determining whether the Noteholders of
Notes evidencing the requisite principal amount of the
Notes Outstanding have given any request, demand, autho-
rization, direction, notice, consent, or waiver under any
Basic Document, Notes owned by the Issuer, any other
obligor upon the Notes, the Sellers, the Servicer or any
Affiliate of any of the foregoing Persons shall be disre-
garded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be pro-
tected in relying on any such request, demand, authoriza-
tion, direction, notice, consent, or waiver, only Notes
that a Responsible Officer of the Indenture Trustee knows
to be so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfac-
tion of the Indenture Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is
not the Issuer, any other obligor upon the Notes, the
Sellers, the Servicer or any Affiliate of any of the
foregoing Persons.
"Outstanding Advances" means, as of any date,
the aggregate of all Advances made by the Servicer with
respect to prior Distribution Dates which have not been
reimbursed pursuant to Section 4.4 of the Sale and Ser-
vicing Agreement.
"Owner Trustee" shall mean ___________________,
a Delaware banking corporation, not in its individual
capacity but solely as Owner Trustee under the Trust
Agreement, or any successor Owner Trustee under the Trust
Agreement.
"Owner Trust Estate" shall mean all right,
title and interest of the Trust in, to and under the
property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement.
"Owner Trust Property" shall mean, collective-
ly, the Receivables and shall also include and will also
include: (i) such amounts as from time to time are on
deposit in one or more accounts maintained pursuant to
the Sale and Servicing Agreement[, including the Yield
Supplement Account]; (ii) security interests in the
Financed Vehicles and any accessions thereto; (iii) the
Sellers' rights (if any) to receive proceeds from claims
under certain insurance policies covering the Financed
Vehicles or the Obligors, as the case may be; (iv) cer-
tain rights of the Trust to receive payments from the
Reserve Account pursuant to the Sale and Servicing Agree-
ment [and pursuant to the Yield Supplement Agreement],
(v) any property that shall have secured a Receivable and
shall have been acquired by the Trust; (vi) each Seller's
rights relating to the repurchase of Receivables under a
Dealer Agreements and under the documents and instruments
contained in the Receivable Files; (vii) [certain][all]
rebates of premiums and other amounts relating to certain
insurance policies and other items financed under the
Receivables; (viii) the rights of the Trust under the
Sale and Servicing Agreement; (ix) all proceeds of any
and all of the foregoing, including all collections of
Receivables received after the Cut Off Date by the
Servicer or a Seller after the Cut Off Date and (x) all
present and future claims, demands, causes of action and
choses in action in respect of any or all of the forego-
ing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all
of the foregoing, including all proceeds of the conver-
sion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables,
instruments and other property which at any time consti-
tute all or part of or are included in the proceeds of
any of the foregoing.
"Permitted Investments" shall mean, on any date
of determination, book-entry securities, negotiable
instruments or securities represented by instruments in
bearer or registered form with maturities not exceeding
the next Distribution Date which evidence:
(a) direct obligations of, and obligations
fully guaranteed as to timely payment by, the United
States of America or its agencies;
(b) demand deposits, time deposits, certifi-
cates of deposit or bankers' acceptances of certain
depository institutions or trust companies having
the highest rating from the applicable Rating Agen-
cy;
(c) commercial paper having, at the time of
the investment or contractual commitment to invest
therein, a rating from each of the Rating Agencies
in the highest investment category granted thereby;
(d) investments in money market funds having a
rating from each of the Rating Agencies in the
highest investment category granted thereby (includ-
ing funds for which the Indenture Trustee or the
Owner Trustee or any of their respective Affiliates
is investment manager or advisor);
(e) repurchase obligations with respect to any
security that is a direct obligation of, or fully
guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the
United States of America, in either case entered
into with a depository institution or trust company
(acting as principal) described in clause (b); and
(f) any other investment (which may include
retail motor vehicle installment sales contracts)
with respect to which the Issuer or the Servicer has
received written notification from the Rating Agen-
cies that the acquisition of such investment as a
Permitted Investment will not result in a withdrawal
or downgrading of the ratings on the Notes or the
Certificates.
"Person" shall mean any individual, corpora-
tion, estate, partnership, joint venture, association,
joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision
thereof.
"Physical Property" shall have the meaning
assigned to such term in the definition of "Delivery"
above.
"Pool Balance" shall mean on any date of deter-
mination, [the sum of (i)] the aggregate outstanding
Principal Balance of the Receivables on such date [and
(ii) the amount on deposit in the Pre-Funding Account
(excluding any Investment Earnings)].
"Pool Factor" as of the last day of a Collec-
tion Period shall mean a seven-digit decimal figure equal
to the Pool Balance divided by the Initial Pool Balance.
"Predecessor Note" shall mean, with respect to
any particular Note, every previous Note evidencing all
or a portion of the same debt as that evidenced by such
particular Note and, for purposes of this definition, any
Note authenticated and delivered under Section 2.6 of the
Indenture in lieu of a mutilated, lost, destroyed or
stolen Note shall be deemed to evidence the same debt as
the mutilated, lost, destroyed or stolen Note.
"Principal Balance" means, as of any time, for
any Receivable, the Cutoff Date Principal Balance minus
the sum of the portions of all payments received from or
on behalf of the related Obligor after the close of
business of the Servicer on the Cutoff Date and prior to
such time of calculation that are allocable to principal
in accordance with the terms of the Receivable and the
Servicer's customary servicing procedures.
"Proceeding" shall mean any suit in equity,
action at law or other judicial or administrative pro-
ceeding.
"Prospectus" shall have the meaning specified
in the Note Underwriting Agreement.
"Purchase Amount" of any Receivable means, with
respect to any Deposit Date, an amount equal to the sum
of (a) the outstanding Principal Balance of such Receiv-
able as of the last day of the preceding Collection
Period and (b) the amount of accrued and unpaid interest
on such Principal Balance at the related Contract Rate
from the date a payment was last made by or on behalf of
the Obligor through the last day of the preceding Collec-
tion Period, and, in the case of each of clauses (a) and
(b), after deducting monies collected on such Receivable
in such preceding Collection Period.
"Purchased Receivable" shall mean on any date
of determination, a Receivable as to which payment of the
Purchase Amount has been made by a Seller or the Servicer
pursuant to the Sale and Servicing Agreement.
"Purchaser" shall mean each Seller in its
individual capacity as Purchaser under an applicable
Dealer Agreement.
"Rating Agency" shall mean each of the nation-
ally recognized statistical rating organizations desig-
nated by the Sellers to provide a rating on the Notes or
the Certificates which is then rating such Notes or
Certificates. If no such organization or successor is
any longer in existence, "Rating Agency" shall be a
nationally recognized statistical rating organization or
other comparable Person designated by the Sellers notice
of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with
respect to any action, that each Rating Agency shall have
been given prior notice thereof and that each of the
Rating Agencies shall have notified the Sellers, the
Servicer, the Owner Trustee and the Indenture Trustee in
writing that such action will not result in a reduction
or withdrawal of the then current rating of the Notes or
the Certificates.
"Realized Losses" shall mean, for any Collec-
tion Period and for each Receivable that became a De-
faulted Receivable during such Collection Period, the
excess of (i) the aggregate Principal Balance of such
Receivable over (ii) Liquidation Proceeds received with
respect to such Receivable during such Collection Period,
to the extent allocable to principal.
"Receivable" shall mean any retail motor vehi-
cle installment sales contract which shall appear on the
Schedule of Receivables and any amendments, modifications
or supplements to such retail installment sale contract
which has not been released by the Indenture Trustee and
the Owner Trustee from the Trust.
"Receivable Files" shall mean the documents
specified in Section 2.3 of the Sale and Servicing Agree-
ment.
"Record Date" shall mean, with respect to each
Distribution Date or Redemption Date and any Note or
Certificate, the day immediately preceding such Distribu-
tion Date or Redemption Date or, with respect to any
Definitive Note or Definitive Certificate, the last day
of the Collection Period immediately preceding such
Distribution Date or Redemption Date.
"Recoveries" shall mean, with respect to any
Collection Period, all monies received by the Servicer
with respect to any Defaulted Receivable during any
Collection Period following the Collection Period in
which such Receivable became a Defaulted Receivable, net
of the sum of (i) any fees, costs or expenses incurred by
the Servicer in connection with the collection of such
Receivable and the disposition of the Financed Vehicle as
permitted by Section 3.3 of the Sale and Servicing Agree-
ment (to the extent not previously reimbursed) and (ii)
any payments required by law to be remitted to the Obli-
gor, but, in any event, not less than zero.
"Redemption Date" shall mean (i) in the case of
a redemption of the Notes pursuant to Section 10.1(a) of
the Indenture or a payment to Noteholders pursuant to
Section 10.1(b) of the Indenture, the Distribution Date
specified by the Servicer pursuant to such Section
10.1(a) or (b), as applicable, or (ii) in the case of a
redemption of the Certificates pursuant to Section 9.3(a)
of the Trust Agreement or a distribution to Certificate-
holders pursuant to Section 9.1(c) of the Trust Agree-
ment, the Distribution Date specified by the Owner Trust-
ee pursuant to such Section 9.3(a) or 9.1(c), as applica-
ble.
"Redemption Price" shall mean (i) with respect
to the Notes, an amount equal to the unpaid principal
amount of each Class of Notes plus accrued and unpaid
interest thereon at the applicable Note Interest Rate to
but excluding the Redemption Date and (ii) with respect
to the Certificates, an amount equal to the Certificate
Balance plus accrued and unpaid interest thereon at the
Certificate Rate to but excluding the Redemption Date.
"Registered Noteholder" shall mean the Person
in whose name a Note is registered on the Note Register
on the applicable Record Date.
"Regular Principal" shall mean, with respect to
any Distribution Date, an amount equal to the sum of
Available Principal and Realized Losses, each with re-
spect to the preceding Collection Period.
"Related Agreements" shall have the meaning
specified in the recitals to the Administration Agree-
ment.
"Required Rating" means a rating with respect
to short-term deposit obligations of at least P-1 by
Moody's and at least A-1 by S&P.
"Reserve Account" shall mean the account estab-
lished and maintained as such pursuant to Section 4.7(a)
of the Sale and Servicing Agreement.
"Reserve Account Property" shall have the
meaning specified in Section 4.7(a) of the Sale and
Servicing Agreement.
"Reserve Account Initial Deposit" shall mean,
with respect to the Closing Date, $________________.
"Required Yield Supplement Amount" shall have
the meaning specified in Section 5.1.]
["Required Yield Supplement Balance" means,
with respect to any Distribution Date, an amount equal to
at least the sum of all projected Yield Supplement
Amounts for all future Distribution Dates, assuming that
future scheduled payments on the Receivables are made on
their Due Dates; provided, however, that if on any date
the Servicer shall fail to pay the amount payable under
the Yield Supplement Agreement in accordance with the
terms thereof, then, in such event, the Specified Yield
Supplement Balance shall not thereafter be reduced here-
under.]
"Sale and Servicing Agreement" shall mean the
Sale and Servicing Agreement, dated as of _________ __,
____, by and among the Trust, the Depositors, as sellers,
and NationsBank, N.A., as servicer.
"Scheduled Payment" shall mean, for any Collec-
tion Period for any Receivable, the amount indicated in
such Receivable as required to be paid by the Obligor in
such Collection Period [(without giving effect to defer-
ments of payments pursuant to Section 3.2 of the Sale and
Servicing Agreement or any rescheduling in any insolvency
or similar proceedings)].
"Schedule of Receivables" shall mean the list
identifying the Receivables attached as Schedule A to the
Sale and Servicing Agreement and the Indenture (which
list may be in the form of microfiche).
"Secretary of State" shall mean the Secretary
of State of the State of Delaware.
"Securities Act" shall mean the Securities Act
of 1933, as amended.
"Securityholders" shall mean the Noteholders
and the Certificateholders, collectively.
"Seller" shall mean each of NationsBank, N.A.,
NationsBank, N.A. (South) and NationsBank of Texas, N.A.,
each a national banking association, and each successor
thereto as permitted under the Sale and Servicing Agree-
ment.
"Servicer" shall mean NationsBank, N.A., a
national banking association, as the servicer of the
Receivables, and each successor to NationsBank, N.A. (in
the same capacity) pursuant to Section 7.3 or 8.2 of the
Sale and Servicing Agreement.
"Servicer's Certificate" shall have the meaning
specified in Section 3.9 of the Sale and Servicing Agree-
ment.
"Servicing Fee" shall mean, with respect to a
Collection Period, the fee payable to the Servicer for
services rendered during such Collection Period, which
shall be equal to one-twelfth of the Servicing Fee Rate
multiplied by the Pool Balance as of the first day of the
Collection Period.
"Servicing Fee Rate" shall mean [1.0]% per
annum.
"Simple Interest Method" means the method of
allocating a fixed level payment between principal and
interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of
the Contract Rate multiplied by the unpaid principal
balance multiplied by a fraction, the numerator of which
is equal to the number of days since the preceding pay-
ment of interest was made and the denominator of which is
365 or 366 and the remainder of such payment is allocable
to principal.
"Simple Interest Receivable" means any Receiv-
able under which the portion of a payment allocable to
interest and the portion allocable to principal is deter-
mined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" shall mean,
with respect to any Distribution Date, the sum of (i)
% of the Initial Pool Balance and (ii) % of the Pool
Balance on the first day of the related Collection Peri-
od. [However, so long as on any Distribution Date (ex-
cept the first Distribution Date) the outstanding prin-
cipal amount of the Securities (after giving effect to
distributions made on the prior Distribution Date) is
less than or equal to % of the Pool Balance on the
first day of the related Collection Period, then the
portion of the Specified Reserve Account Balance set
forth in clause (i) above will be reduced to % of the
Initial Pool Balance.] [In addition, so long as on any
Distribution Date (except the first Distribution Date)
the outstanding principal amount of the Securities (after
giving effect to distributions made on the prior Distri-
bution Date) is less than or equal to % of the Pool
Balance on the first day of the related Collection Peri-
od, then such portion of the Specified Reserve Account
Balance set forth in clause (i) above will be reduced to
% of the Initial Pool Balance.] [With respect to the
portion of the Specified Reserve Account Balance set
forth in clause (ii) above, so long as on any Distribu-
tion Date (except the first Distribution Date) the out-
standing principal amount of the Securities (after giving
effect to distributions made on the prior Distribution
Date) is less than or equal to % of the Pool Balance
on the first day of the related Collection Period, then
such portion will be reduced to an amount equal to the
product of (I) the Pool Balance on the first day of the
related Collection Period and (II) the percentage (which
shall not be greater than % or less than zero) equal
to (X) the percentage derived from the fraction, the
numerator of which is the outstanding principal amount of
the Securities (after giving effect to distributions made
on the prior Distribution Date) and the denominator of
which is such Pool Balance less (Y) %.]
"Standard & Poor's" shall mean Standard &
Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"State" means any state or commonwealth of the
United States of America, or the District of Columbia.
["Subsequent Transfer Date" shall mean _____.]
"Successor Servicer" shall have the meaning
specified in Section 3.7(e) of the Indenture.
"Supplemental Servicing Fee" shall mean, the
fee payable to the Servicer for certain services rendered
during the respective Collection Period, determined
pursuant to and defined in Section 3.8 of the Sale and
Servicing Agreement.
["Total Required Payment" shall mean, with
respect to any Distribution Date, the sum of (i) the
Servicing Fee and any overdue Servicing Fees, (ii) the
Accrued Note Interest, (iii) the Noteholders' Regular
Principal, (iv) the Accrued Certificate Interest with
respect to such Distribution Date and (v) after all the
Notes have been paid in full, the Certificateholders'
Regular Principal; provided, however, that following the
occurrence and during the continuation of an Event of
Default which has resulted in an acceleration of the
Notes or following an Insolvency Event or a dissolution
with respect to the General Partner, on any Distribution
Date until the Distribution Date on which the outstanding
principal amount of all the Notes has been paid in full,
the Total Required Payment shall mean the sum of the
Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods, the Accrued Note Interest and the
amount necessary to reduce the outstanding principal
amount of all the Notes to zero.]
"Treasury Regulations" shall mean regulations,
including proposed or temporary regulations, promulgated
under the Code. References to specific provisions of
proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other succes-
sor Treasury Regulations.
"Trust" shall mean NationsBank Auto Owner Trust
____-_, a Delaware business trust established pursuant to
the Trust Agreement.
"Trust Agreement" shall mean the Amended and
Restated Trust Agreement dated as of __________ __, ____,
by and between the Sellers, as depositors, and the Owner
Trustee.
"Trust Indenture Act" or "TIA" shall mean the
Trust Indenture Act of 1939, as amended, unless otherwise
specifically provided.
"Trustee Officer" shall mean, with respect to
the Indenture Trustee, any officer within the Corporate
Trust Office of the Indenture Trustee with direct respon-
sibility for the administration of the Indenture and the
other Basic Documents on behalf of the Indenture Trustee
and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particu-
lar subject and, with respect to the Owner Trustee, any
officer within the Corporate Trust Office of the Owner
Trustee with direct responsibility for the administration
of the Trust Agreement and the other Basic Documents on
behalf of the Owner Trustee.
"UCC" shall mean the Uniform Commercial Code as
in effect in any relevant jurisdiction.
["Yield Supplement Account" shall have the
meaning specified in Section 5.1 of the Sale and Servic-
ing Agreement.]
["Yield Supplement Amount" shall have the
meaning specified in Section 5.1 of the Sale and Servic-
ing Agreement.]
["Yield Supplement Agreement" shall mean the
Yield Supplement Agreement, dated as of _________ __,
____, by and between the Sellers and NationsBank, N.A.,
as Servicer, substantially in the form of Exhibit [__] to
the Sale and Servicing Agreement.]
["Yield Supplement Initial Deposit" means cash
or Permitted Investments having a value of at least
$_________.]