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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) September 25, 1997
Barnett Auto Receivables Corp.
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(Exact name of registrant as specified in its charter)
Nevada 333-26675 Application Pending
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(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) ID Number)
3800 Howard Hughes Parkway, Suite 1560, Las Vegas, Nevada 70809
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
including area code: (702) 735-1811
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events
Barnett Receivables Corp. (the "Depositor") registered
issuances of up to $750,000,000 principal amount of Asset Backed
Notes and Asset Backed Certificates on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Act"), by a Registration Statement on Form S-3
(Registration File No. 333-26675) (as amended, the "Registration
Statement"). Pursuant to the Registration Statement, the
Depositor caused Barnett Auto Trust 1997-A (the "Trust") to issue
$602,124,240 principal amount of Asset Backed Notes (the
"Notes"), on September 25, 1997 (the "Closing Date"). This
Current Report on Form 8-K is being filed to file a copy of the
Sale and Servicing Agreement (defined below), the Indenture
(defined below), the Trust Agreement (defined below) and the
Underwriting Agreement entered into among the Depositor, Barnett
Dealer Financial Services, Inc. ("Barnett"), as sponsor and
Salomon Brothers Inc, as representative of the several
underwriters.
The Notes were issued pursuant to an Indenture (the
"Indenture"), dated as of September 1, 1997 (the "Cut-Off Date"),
between the Trust and U.S. Bank National Association, as Trustee.
The Trust was created pursuant to a Trust Agreement (the "Trust
Agreement"), dated as of the Cut-Off Date, between the Depositor
and The Bank of New York, as Owner Trustee. The Receivables will
be serviced pursuant the Sale and Servicing Agreement (the "Sale
and Servicing Agreement"), dated as of the Cut-Off Date, among
the Depositor, Barnett and the Trust
Capitalized terms not defined herein have the meanings
assigned in the Sale and Servicing Agreement attached hereto
as Exhibit 4.1.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1.1 Underwriting Agreement dated September 18, 1997 among the
Depositor, Barnett Dealer Financial Services, Inc. and
Salomon Brothers Inc, as representative of the several
underwriters.
4.1 Sale and Servicing Agreement dated as of September 1, 1997
among the Depositor, Barnett and the Trust.
4.2 Indenture dated as of September 1, 1997 between the Trust and
U.S. Bank National Association, as Trustee.
4.3 Trust Agreement dated as of September 1, 1997 between the
Depositor and The Bank of New York, as Owner Trustee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BARNETT AUTO RECEIVABLES CORP.
By: /s/ GERALD G. ROBINSON
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Name: Gerald G. Robinson
Title: President
Dated: October 3, 1997
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EXHIBIT INDEX
Exhibit Page
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1.1 Underwriting Agreement dated September 18, 1997
among the Depositor, Barnett Dealer Financial
Services, Inc. and Salomon Brothers Inc, as
representative of the several underwriters.
4.1 Sale and Servicing Agreement dated as of
September 1, 1997 among the Depositor, Barnett
and the Trust.
4.2 Indenture dated as of September 1, 1997 between
the Trust and U.S. Bank National Association, as
Trustee.
4.3 Trust Agreement dated as of September 1, 1997
between the Depositor and The Bank of New York, as
Owner Trustee.
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EXHIBIT 1.1
BARNETT AUTO TRUST 1997-A
$109,300,000 5.6544%% CLASS A-1 ASSET BACKED NOTES
$155,000,000 5.92% CLASS A-2 ASSET BACKED NOTES
$170,000,000 6.03% CLASS A-3 ASSET BACKED NOTES
$90,000,000 6.18% CLASS A-4 ASSET BACKED NOTES
$41,696,000 6.26% CLASS A-5 ASSET BACKED NOTES
$36,128,240 6.38% CLASS B ASSET BACKED NOTES
Barnett Auto Receivables Corp.
(DEPOSITOR)
UNDERWRITING AGREEMENT
September 18, 1997
Salomon Brothers Inc,
as Representative of the Several
Underwriters (the "Representative")
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
1. Introductory. Barnett Auto Receivables Corp., Inc. (the "Depositor") has
previously filed a registration statement with the Securities and Exchange
Commission relating to the issuance and sale from time to time of up to
$750,000,000 of asset backed notes and/or asset backed certificates. The
Depositor proposes to cause BARNETT AUTO TRUST 1997-A (the "Trust") to issue and
sell to the Underwriters $109,300,000 principal amount of its 5.6544% Class A-1
Asset Backed Notes (the "Class A-1 Notes"), $155,000,000 principal amount of its
5.92% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), $170,000,000
principal amount of its 6.03% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $90,000,000 principal amount of its 6.18% Class A-4 Asset Backed Notes
(the "Class A-4 Notes") and $41,696,000 principal amount of its 6.26% Class A-5
Asset Backed Notes (the "Class A-5 Notes" and together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, the "Class A Notes") and
$36,128,240 principal amount of its Class B 6.38% Asset Backed Notes (the "Class
B Notes" and, together with the Class A Notes, the "Notes"). The Trust will
also issue Asset Backed Certificates (the "Certificates" and together with the
Notes, the "Securities") which will be
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retained by the Depositor. The assets of the Trust will include, among other
things, a pool of motor vehicle retail installment sale contracts and other
motor vehicle installment chattel paper (the "Receivables") secured by new and
used automobiles (including passenger cars, minivans, sport/utility vehicles and
light trucks) financed thereby (the "Financed Vehicles"), and certain monies
received thereunder on or after September 1, 1997 (the "Cutoff Date"), and the
other property and the proceeds thereof to be conveyed to the Trust pursuant to
the Sale and Servicing Agreement to be dated as of September 1, 1997 (the "Sale
and Servicing Agreement") among Barnett Auto Trust 1997-A (the "Trust"), the
Depositor and Barnett Dealer Financial Services, Inc. ("BDFS"), as servicer (the
"Servicer") and as sponsor (the "Sponsor"). Pursuant to the Sale and Servicing
Agreement, the Depositor will sell the Receivables to the Trust and the Servicer
will service the Receivables on behalf of the Trust. In addition, pursuant to
the Sale and Servicing Agreement, the Servicer will agree to perform certain
administrative tasks on behalf of the Trust imposed on the Trust under the
Indenture. The Notes will be issued pursuant to the Indenture to be dated as of
September 1, 1997 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and U.S. Bank National Association (the
"Trustee"). The Sponsor will cause the Depositor to form the Trust pursuant to
a Trust Agreement (the "Trust Agreement") to be dated as of September 1, 1997,
between the Depositor and The Bank of New York, as owner trustee (the "Owner
Trustee"). The Certificates, each representing a fractional undivided interest
in the Trust, will be issued pursuant to the Trust Agreement.
The Receivables were originated or acquired by certain wholly-owned
direct and indirect subsidiaries of Barnett Bank, N.A. (each, a "Contributor").
Each Contributor will contribute the Receivables owned by it to the Depositor
pursuant to the terms of the Loan Contribution Agreement (the "Loan Contribution
Agreement") dated as of September 1, 1997 among the Depositor, the Sponsor and
the Contributors.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the preliminary prospectus or, if not defined therein, as
defined in the Sale and Servicing Agreement. As used herein, the term "Basic
Documents" refers to the Sale and Servicing Agreement, Indenture, Trust
Agreement, Loan Contribution Agreement and Note Depository Agreement.
2. Representations and Warranties of the Depositor and the Sponsor. Each of
the Depositor and the Sponsor jointly and severally represents and warrants to
and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-26675), including a
prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the terms of
the Notes as first filed with the Commission after the date of this Agreement
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus;" a
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"preliminary prospectus" means any form of prospectus, including any prospectus
supplement, relating to the Notes used prior to date of this Agreement that is
subject to completion.
(b) On the effective date of the registration statement relating to the
Notes, such registration statement conformed in all respects to the requirements
of the Act and the rules and regulations of the Commission promulgated under the
Act (the "Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
this Agreement the Registration Statement and the preliminary prospectus
conform, and at the time of the filing of the Prospectus in accordance with Rule
424(b), the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes or will include any untrue statement of a
material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
preceding sentence does not apply to statements in or omissions from such
documents based upon (i) written information furnished to the Depositor by the
Representative specifically for use therein, it being understood that the only
such information consists of the Underwriters' Information (as defined in
Section 7(i)) or (ii) the Derived Information (as defined in Section 7 below)
contained in the Current Report (as defined in Section 5(a) below) or in any
amendment thereof or supplement thereto, incorporated by reference in such
Registration Statement or such Prospectus (or any amendment thereof or
supplement thereto).
(c) The Notes are "asset backed securities" within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration Statement
and Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Depositor, BDFS and each Contributor is a corporation duly
organized, validly existing and in good standing under the laws of its
respective state of incorporation, is duly qualified to transact business as a
foreign corporation in each jurisdiction in which it is required to be so
qualified and has all necessary licenses, permits and consents to conduct its
business as presently conducted and as described in the Prospectus and to
perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the
Depositor and BDFS and constitutes a valid and binding agreement of each of the
Depositor and the Sponsor, enforceable against the Depositor and BDFS in
accordance with its terms, subject as to the enforcement of remedies (x) to
applicable bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting creditors' rights generally, (y) to general principles of equity
(regardless of and whether the enforcement of such remedies is considered in a
proceeding in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
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(g) None of the Depositor, BDFS or any of the Contributors is in breach or
violation of any credit or security agreement or other agreement or instrument
to which it is a party or by which it or its properties may be bound, or in
violation of any applicable law, statute, regulation or ordinance or any
governmental body having jurisdiction over it, which breach or violation would
have a material and adverse effect on its ability to perform its obligations
under this Agreement or any of the Basic Documents, in each case, to which it is
a party.
(h) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Depositor, BDFS, any Contributor or any affiliate thereof or
the Underwriters, any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(i) Neither BDFS or the Depositor has entered into, nor will it enter
into, any contractual arrangement with respect to the distribution of the Notes
except for this Underwriting Agreement
(j) The Trust is not an "investment company" and is not required to be
registered as an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and
warranties of BDFS, the Depositor and each of the Contributors, in each of its
capacities under each of the Basic Documents, to which it is a party will be
true and correct in all material respects and each such representation and
warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating
to the Notes pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been duly
authorized, executed and delivered by each of the parties thereto.
(n) The Certificates, when duly and validly executed by the Owner Trustee,
authenticated and delivered in accordance with the Trust Agreement, and
delivered to and paid for pursuant hereto will be validly issued and outstanding
and entitled to the benefits of the Trust Agreement.
(o) The Trust's assignment of the Collateral to the Trustee pursuant to
the Indenture will vest in the Trustee, for the benefit of the Noteholders, a
first priority perfected security interest therein, subject to no other
outstanding Lien.
(p) The Notes, when duly and validly executed by the Trustee,
authenticated and delivered in accordance with the Indenture, and delivered and
paid for pursuant hereto will be enforceable in accordance with their terms,
subject as to enforceability to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and
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similar laws now or hereafter in effect relating to creditors' rights generally
and subject to general principles of equity (whether in a proceeding at law or
in equity).
(q) Neither the execution, delivery or performance of any of the Basic
Documents by the Depositor, BDFS or any of the Contributors, nor the issuance,
sale and delivery of the Notes or Certificates, nor the fulfillment of the terms
of the Notes or Certificates, will conflict with, or result in a breach,
violation or acceleration of, or constitute a default under, any term or
provision of the organizational documents of the Depositor, BDFS or any of the
Contributors, any material indenture or other material agreement or instrument
to which the Depositor, BDFS or any of the Contributors is a party or by which
any of them or their properties is bound or result in a violation of or
contravene the terms of any statute, order or regulation applicable to the
Depositor, BDFS or any of the Contributors of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Depositor, BDFS or any of the Contributors, or will result in the creation
of any lien upon any material property or assets of the Depositor, BDFS or any
of the Contributors (other than pursuant to the Basic Documents).
(r) There are no legal or governmental proceedings pending to which the
Depositor, BDFS or any Contributor is a party or of which any of its properties
is the subject, which if determined adversely to the Depositor, BDFS or any
Contributor would individually or in the aggregate have a material adverse
effect on the financial position, shareholders' equity or results of operations
of any of them; and to the best of the Depositor's or BDFS's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others.
(s) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance of the Notes and Certificates or sale of the Notes or the consummation
of the other transactions contemplated by this Agreement or the Basic Documents,
except such as have been duly made or obtained.
(t) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development which could reasonably be expected to result
in a material adverse change, in or affecting the financial position,
shareholders' equity or results of operations of the Depositor, BDFS or any
Contributor or the Depositor's, BDFS's or any Contributor's ability to perform
its obligations under this Agreement or any of the Basic Documents to which it
is a party.
(u) Any taxes, fees and other governmental charges due on or prior to the
Closing Date (including, without limitation, sales taxes) in connection with the
execution, delivery and issuance of this Agreement, the Basic Documents and the
Securities have been or will have been paid at or prior to the Closing Date.
(v) The Receivables transferred by the Contributors other than BDFS are
chattel paper as defined in the Uniform Commercial Code as in effect in the
State of New York. The Receivables transferred by BDFS to the Depositor are
chattel paper as defined in the Uniform Commercial Code as in effect in the
State of Florida. The Receivables transferred by the
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Depositor to the Trust are chattel paper as defined in the Uniform Commercial
Code as in effect in the State of Nevada.
(w) Under generally accepted accounting principles, each Contributor will
report its transfer of the Receivables transferred by it to the Depositor
pursuant to the Loan Contribution Agreement as a contribution of the Receivables
(and the Depositor will cause each Contributor to report as a contribution its
transfer of the Receivables to the Depositor), and the Depositor will report its
transfer of the Receivables to the Trustee pursuant to the Sale and Servicing
Agreement as a sale of the Receivables for financial accounting purposes.
(x) Immediately prior to the transfer thereof to the Depositor pursuant to
the Loan Contribution Agreement, the Contributors are the sole owners of all
right, title and interest in, and have good and marketable title to the
Receivables and the other property to be transferred to the Depositor. The
Contributors, pursuant to the Loan Contribution Agreement, are transferring to
the Depositor ownership of the Receivables, the security interest in the
Financed Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to the Trust, the
Depositor will be the sole owner of all right, title and interest in, and will
have good and marketable title to, the Receivables and the other property to be
transferred by it to the Trust. The assignment of the Receivables, all
documents and instruments relating thereto and all proceeds thereof to the
Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all
interests which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances.
(y) Immediately prior to the transfer of the Receivables to the Depositor,
the Contributors' interest in the Receivables and the proceeds thereof shall be
perfected upon the filing of UCC-1 financing statements (the "Financing
Statements") in the offices specified in Schedule I and there shall be no
unreleased statements affecting the Receivables filed in such offices other than
the Financing Statements. If a court concludes that the transfer of the
Receivables from the Contributors to the Depositor is a sale, the interest of
the Depositor in the Receivables and the proceeds thereof will be perfected upon
the filing of the Financing Statements in the office of the Secretary of State
of the State of New York. If a court concludes that such transfer is not a
sale, the Sale and Servicing Agreement and the transactions contemplated thereby
constitute a grant by the Contributors to the Depositor of a valid security
interest in the Receivables and the proceeds thereof, which security interest
will be perfected upon the filing of the Financing Statements in the office of
the Secretary of State of the State of New York. No filing or other action,
other than the filing of the Financing Statements in the office of the Secretary
of State of the State of New York referred to above, is necessary to perfect and
maintain the interest or the security interest of the Depositor in the
Receivables and the proceeds thereof against third parties.
(z) Immediately prior to the transfer of the Receivables to the Trust, the
Depositor's interest in the Receivables and the proceeds thereof shall be
perfected upon the filing of the Financing Statements and there shall be no
unreleased statements affecting the Receivables filed in such offices other than
the Financing Statements. If a court concludes that the transfer of the
Receivables from the Depositor to the Trust is a sale, the interest of the Trust
in the Receivables
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and the proceeds thereof will be perfected upon the filing of the Financing
Statements in the office of the Secretary of State of the State of Nevada. If a
court concludes that such transfer is not a sale, the Sale and Servicing
Agreement and the transactions contemplated thereby constitute a grant by the
Depositor to the Trust of a valid security interest in the Receivables and the
proceeds thereof, which security interest will be perfected upon the filing of
the Financing Statements in the office of the Secretary of State of the State of
Nevada. No filing or other action, other than the filing of the Financing
Statements in the office of the Secretary of State of the State of Nevada
referred to above, is necessary to perfect and maintain the interest or the
security interest of the Trust in the Receivables and the proceeds thereof
against third parties.
(aa) As of the Closing Date, each of the respective representations and
warranties of the Depositor, BDFS, and each of the Contributors set forth in the
Basic Documents will be true and correct, and the Underwriters may rely on such
representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Notes in the State of Florida,
the Depositor hereby certifies that it has complied with all provisions of
Section 5.17.075 of the Florida Securities and Investor Protection Act.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, the principal amount of each class of Notes
set forth opposite the name of such Underwriter on Schedule II hereto at a
purchase price equal to "Price %" as specified on Schedule III hereto.
The Depositor will deliver the Notes to the Representative for the
account of the Underwriters, against payment of the purchase price to or upon
the order of the Depositor by wire transfer or check in Federal (same day)
Funds, at the office of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038, at 10:00 a.m., New York time on September 25, 1997, or at
such other time not later than seven full business days thereafter as the
Representative and the Depositor determine, such time being herein referred to
as the "Closing Date." The Notes to be so delivered will be initially
represented by one or more Notes registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes will be available only
under the limited circumstances specified in the Basic Documents.
4. Offering by Underwriters. It is understood that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Notes for
sale to the public (which may include selected dealers), on the terms set forth
in the Prospectus.
5. Covenants of the Depositor and the Sponsor. Each of the Depositor and the
Sponsor covenants and agrees with the Underwriters that:
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(a) The Depositor will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) no later than the second business day following the earlier of the date
of determination of the offering price or the date it is first used. The
Depositor and the Sponsor will advise the Representative promptly of any such
filing pursuant to Rule 424(b). Subject to the Underwriters compliance with its
obligations set forth in Section 7(h) hereof, the Depositor shall file with the
Commission a current report on Form 8-K (the "Current Report") including any
Derived Information (as defined herein) provided to it by the Representative
pursuant to Section 7(h) hereof (i) no later than the date that the Prospectus
Supplement is filed with respect to "computational materials" and "structural
terms sheets" (as such terms are interpreted in the No-Action letters addressed
to Kidder, Peabody Acceptance Corporation I, et al. and the Public Securities
Association dated May 20, 1994 and February 17, 1995, respectively
(collectively, the "PSA Letters")) or (ii) no later than two days following
their date of first use with respect to "collateral term sheets" (as such term
is interpreted in the PSA Letters).
(b) The Depositor and the Sponsor will advise the Representative promptly
of any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation without the
consent of the Representative, which consent shall not be unreasonably withheld
or delayed; and the Depositor and the Sponsor will advise the Representative
promptly of any amendment or supplementation of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is required to
be delivered by an Underwriter or dealer either (i) any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Depositor and the Sponsor promptly will notify the Representative of such event
and promptly will prepare, at their own expense, an amendment or supplement
which will correct such statement or omission. Neither the Representative's
consent to, nor the Underwriters distribution of any amendment or supplement to
the Prospectus shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(d) The Depositor and the Sponsor will furnish to the Underwriters copies
of any preliminary prospectus, the Prospectus, the Registration Statement and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably requests.
(e) The Sponsor will take all actions which are reasonably necessary to
arrange for the qualification of the Notes for offering and sale under the laws
of such jurisdictions as the Representative designates and will continue such
qualifications in effect so long as required
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under such laws for the distribution of the Notes; provided, however, that in no
event shall the Depositor be obligated to qualify as a foreign corporation or to
execute a general or unlimited consent to service of process in any such
jurisdiction.
(f) The Depositor and the Sponsor shall furnish or make available to the
Representative or its counsel such additional documents and information
regarding the Depositor and their respective affairs as the Representative may
from time to time reasonably request, including any and all documentation
reasonably requested in connection with its due diligence efforts regarding
information in the Registration Statement and the Prospectus and in order to
evidence the accuracy or completeness of any of the conditions contained in this
Underwriting Agreement; and all actions taken by the Depositor to authorize the
sale of the Notes shall be reasonably satisfactory in form and substance to the
Representative.
(g) The Depositor and the Sponsor shall, at all times upon request of the
Representative or its advisors, or both, from the date hereof through the
Closing Date, (i) make available to the Underwriters or their advisors, or both,
prior to acceptance of its purchase, such information (in addition to that
contained in the Registration Statement and the Prospectus) concerning the
offering, the Depositor and any other relevant matters as they possess or can
acquire without unreasonable effort or expense and (ii) provide the Underwriters
or their advisors, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers from, the Depositor and the
Sponsor with respect to such matters.
(h) The Depositor and the Sponsor will cause the Trust to make generally
available to Noteholders, as soon as practicable, but no later than sixteen
months after the date hereof, an earnings statement of the Trust covering a
period of at least twelve consecutive months beginning after the later of (i)
the effective date of the registration statement relating to the Notes and (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this Agreement
and, in each case, satisfying the provisions of Section 11(a) of the Act
(including Rule 158 promulgated thereunder).
(i) For a period from the date of this Agreement until the retirement of
the Notes, or until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, whichever occurs first, the Depositor will
deliver to the Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee
pursuant to the Basic Documents, as soon as such statements and reports are
furnished to the Trustee.
(j) So long as any of the Notes are outstanding, the Depositor will
furnish to the Representative (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or filed
with the Commission on behalf of the Trust pursuant to the Exchange Act, or any
order of the Commission thereunder and (ii) from time to time, any other
information concerning the Depositor or BDFS as the Representative may
reasonably request only insofar as such information reasonably relates to the
Registration Statement or the Prospectus or the transactions contemplated by the
Basic Documents.
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(k) On or before the Closing Date, the Depositor and the Sponsor shall
cause the computer records of the Depositor, BDFS and each of the Contributors
relating to the Receivables to show the absolute ownership by the Owner Trustee
on behalf of the Trust of the Receivables, and from and after the Closing Date
none of the Depositor, BDFS or any of the Contributors shall not take any action
inconsistent with the ownership by the Owner Trustee on behalf of the Trust of
such Receivables, other than as permitted by the Sale and Servicing Agreement.
(l) To the extent, if any, that any of the ratings provided with respect
to the Notes by the rating agency or agencies that initially rate any of the
Notes are conditional upon the furnishing of documents or the taking of any
other actions by the Depositor or the Sponsor on or prior to the Closing Date
none of the Depositor and the Sponsor shall furnish such documents and take any
such other actions. A copy of any such document shall be provided to the
Representative at the time it is delivered to the rating agencies.
(m) The Sponsor will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
documents (including the Registration Statement and the Prospectus), (ii) the
preparation, issuance and delivery of the Notes to the Representative, (iii) the
fees and disbursements of the Sponsor's, the Depositor's and BDFS's counsel
(including without limitation, local counsel in the State of Nevada) and
accountants, (iv) the qualification of the Notes under state securities laws,
including filing fees and the fees and disbursements of counsel for the
Representative in connection therewith and in connection with the preparation of
any blue sky or legal investment survey, if any is requested, (v) the printing
and delivery to the Underwriters of copies of the Registration Statement and the
Prospectus and each amendment thereto, (vi) any fees charged by rating agencies
for the rating of the Notes, (vii) the fees and expenses of the Trustee and its
counsel, (viii) the fees and expenses of the Owner Trustee and its counsel and
(ix) the fees and expenses of Richards, Layton & Finger.
6. Conditions of the Obligations of the Underwriters. The obligations of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy,
as of the date hereof and as of the Closing Date, of the representations and
warranties on the part of the Depositor and the Sponsor herein, to the accuracy
of the written statements of officers of the Depositor and the Sponsor made
pursuant to the provisions of this Section, to the performance by the Depositor
and the Sponsor of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the date
hereof, of Arthur Andersen & Co., confirming that such accountants are
independent public accountants within the meaning of the Act and the Rules and
Regulations, and substantially in the form of the drafts to which the
Representative has previously agreed and otherwise in form and substance
reasonably satisfactory to the Representative and counsel for the Representative
(i) regarding certain numerical information contained in the Prospectus and (ii)
relating to certain agreed-upon procedures.
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(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Depositor or the Sponsor, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the Receivables or particularly the business
or properties of the Trust, the Depositor or BDFS which, in the reasonable
judgment of a majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of the Notes; (ii)
any downgrading in the rating of any debt securities of Barnett Banks, Inc. by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on the New York
or American Stock Exchanges, or any setting of minimum prices for trading on
such exchange; (iv) any suspension of trading of any securities of Barnett
Banks, Inc. on any exchange, the NASDAQ National Market or in the
over-the-counter market; (v) any banking moratorium declared by Federal, New
York or Florida authorities; or (vi) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
(including the Representative), the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes.
(d) On the Closing Date, each of the Basic Documents and the Securities
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default shall exist thereunder, and the
Owner Trustee shall have received a fully executed copy thereof or, with respect
to the Notes, a conformed copy thereof. The Basic Documents and the Securities
shall be substantially in the forms heretofore provided to the Representative.
(e) The Representative shall have received an opinion of Stroock & Stroock
& Lavan LLP, special counsel to the Depositor, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Registration Statement became effective under the Act as of
September 9, 1997 and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement
or any part thereof or any amendment thereto has been issued under the
Act and no proceeding for that purpose has been instituted or
threatened by the Commission.
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(ii) The Depositor is not, and will not as a result of the offer and
sale of the Notes as contemplated in the Prospectus and this Agreement
become, an "investment company" as defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"), or a company
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(iii) Neither the Trust Agreement nor the Indenture need be
qualified under the Trust Indenture Act and the Trust is not required
to register under the Investment Company Act.
(iv) The Receivables conveyed by the Centrex Contributors to the
Depositor are chattel paper as defined in the Uniform Commercial Code
as in effect in the State of New York.
(v) The statements in the Prospectus under the headings "Summary of
Terms -- Federal Income Tax Consequences," "Federal Income Tax
Consequences," "Summary of Terms -- ERISA Considerations," and "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and accurately describe the material
consequences to holders of the Notes under the Code and ERISA.
(vi) When the Notes have been executed, authenticated and delivered in
accordance with the Indenture and paid for pursuant to this Agreement,
the Notes will be validly issued and outstanding and enforceable in
accordance with their terms, subject as to enforceability to the
effects of applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws now or hereafter in
effect relating to creditors' rights generally and subject to general
principles of equity (whether in a proceeding at law or in equity).
(vii) Assuming that this Agreement and the Basic Documents have
been duly authorized, executed and delivered by BDFS, the Contributors
and the Depositor, as the case may be, this Agreement and the Basic
Documents to which each is a party are the legal, valid and binding
obligation of, BDFS, the Contributors and the Depositor, enforceable
against BDFS, the Contributors and the Depositor in accordance with
their terms, subject as to enforceability to the effects of applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of
equity (whether in a proceeding at law or in equity).
(viii) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act and the Rules and
Regulations, except as to the financial statements
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and other financial and statistical data included therein, to which
such counsel need not express any opinion.
(ix) The Registration Statement relating to the Notes as of its
effective date and the Prospectus as of the date of this Agreement,
and any amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the Act and
the applicable Rules and Regulations. Such counsel need express no
opinion with respect to the financial statements, the exhibits,
annexes and other financial, statistical, numerical or portfolio data,
economic conditions or financial condition of the portfolio
information included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus or any
amendment or supplement thereto.
(x) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and that
no facts have come to their attention which cause them to believe that
the Registration Statement relating to the Notes as of its effective
date, and the Prospectus, as of the date of this Agreement, and any
amendment or supplement thereto, as of its date when it became
effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus on its date contained or on the Closing Date contains, any
untrue statement of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel need not express
any view with respect to the financial, statistical or computational
material included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus or any
amendment or supplement thereto.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(f) The Representative shall have received the opinion of Stroock &
Stroock & Lavan LLP, special counsel to the Trust, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters, regarding the creation, attachment and perfection of a first
priority security interest in the Receivables and the property held in the
Reserve Account in favor of the Trustee on behalf of the Noteholders. Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the State of New York. To the
extent any portion of such opinion is governed by the laws of the State of
Delaware, such opinion will be
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given by Richards, Layton & Finger. To the extent any portion of such opinion
is governed by the laws of the State of Illinois, such opinion will be given by
Dorsey & Whitney LLP.
(g) The Representative shall have received the opinion of in-house counsel
to the Contributors other than BDFS (the "Centrex Contributors"), or such other
counsel acceptable to the Representative and counsel for the Underwriters, dated
the Closing Date, satisfactory in form and substance to the Underwriters and
counsel for the Underwriters to the effect that:
(i) Each of the Centrex Contributors has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the state of its incorporation, with full corporate power and
authority to own its properties and conduct its business, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which its failure to qualify would have a material
adverse effect upon the business or the ownership of its property.
(ii) The Loan Contribution Agreement has been duly authorized,
executed and delivered by, and constitutes a legal, valid and binding
obligation of, each Centrex Contributor, enforceable against such
Centrex Contributor in accordance with its terms, subject as to
enforceability to the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws now
or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity (whether in a proceeding at
law or in equity).
(iii) Neither the transfer of certain of the Receivables by the
Centrex Contributors to the Depositor or the Depositor to the Trustee
on behalf of the Trust, nor the assignment by the Depositor of the
Trust Estate to the Trust, nor the grant by the Trust of the security
interest in the Collateral to the Trustee pursuant to the Indenture,
nor the execution, delivery and performance by the each of the Centrex
Contributors of the Basic Documents to which it is a party, nor the
consummation by the Depositor of the transactions contemplated thereby
will conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of any Centrex Contributor, pursuant to the
terms of the certificate of incorporation or the by-laws of any
Centrex Contributor or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction over
such Centrex Contributor or its properties, or any agreement or
instrument known to such counsel after due investigation to which such
Centrex Contributor is a party or by which such Centrex Contributor or
any of its properties is bound.
(iv) No authorization, license, approval, consent or order of, or
filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
of this Agreement and each of the Basic Documents to which it is a
party by any Centrex Contributor.
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<PAGE>
(v) To the best of the knowledge of such counsel, there are no legal
or governmental proceedings pending to which any Centrex Contributor
is a party or of which any property of any Centrex Contributor is the
subject, and no such proceedings are known to such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (i) asserting the invalidity of all or any part of the Loan
Contribution Agreement or (ii) that could materially adversely affect
the ability of any Centrex Contributor to perform its obligations
under any of the Basic Documents to which it is a party.
(vi) Each Centrex Contributor has full power and authority to
contribute and assign the property to be sold and assigned to the
Depositor by it pursuant to the Loan Contribution Agreement and has
duly authorized such contribution and assignment to the Depositor by
all necessary corporate action.
(vii) Such counsel is familiar with the Centrex Contributors'
standard operating procedures relating to the acquisition of a
perfected first priority security interest in the vehicles financed by
each of such Centrex Contributors pursuant to retail installment sale
contracts in the ordinary course of their business. Assuming that
these standard procedures are followed with respect to the perfection
of security interests in the Financed Vehicles, each Centrex
Contributor has acquired or will acquire a perfected first priority
security interests in the Financed Vehicles with respect to which it
has originated Receivables sold by it to the Depositor.
(viii) Immediately prior to the transfer of certain of the
Receivables by the Centrex Contributors pursuant to the Loan
Contribution Agreement, each Centrex Contributor was the sole owner of
all right, title and interest in the Receivables and the other
property transferred by it to the Depositor.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(h) The Representative shall have received the opinion of Mahoney Adams &
Criser, P. A., counsel to BDFS or such other counsel acceptable to the
Representative and counsel for the Underwriters, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) BDFS has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation, with full corporate power and authority to own its
properties and conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which its
failure to qualify would have a material adverse effect upon the
business or the ownership of its property.
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<PAGE>
(ii) The Registration Statement became effective under the Act as of
September 9, 1997, and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement or any part thereof or any amendment thereto
has been issued under the Act and no proceeding for that purpose has
been instituted or threatened by the Commission.
(iii) The Sale and Servicing Agreement, the Loan Contribution
Agreement and the Underwriting Agreement have been duly authorized,
executed and delivered by BDFS.
(iv) Neither the transfer of certain of the Receivables by the
Centrex Contributors to the Depositor or the Depositor to the Trustee
on behalf of the Trust, nor the assignment by the Depositor of the
Trust Estate to the Trust, nor the grant by the Trust of the security
interest in the Collateral to the Owner Trustee pursuant to the
Indenture, nor the execution, delivery and performance by the
Depositor, BDFS and each of the Centrex Contributors of this Agreement
and the Basic Documents to which it is a party, nor the consummation
by the Depositor of the transactions contemplated thereby will
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property
or assets of BDFS, pursuant to the terms of the certificate of
incorporation or the by-laws of the BDFS or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over BDFS or the Depositor or their properties, or
any agreement or instrument known to me after due investigation to
which BDFS or the Depositor is a party or by which BDFS or the
Depositor or any of their properties is bound.
(v) No authorization, license, approval, consent or order of, or
filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
of this Agreement and each of the Basic Documents to which it is a
party by BDFS or the Depositor.
(vi) To the best of the knowledge of such counsel, there are no legal
or governmental proceedings pending to which BDFS or the Depositor is
a party or of which any property of BDFS or the Depositor is the
subject, and no such proceedings are known to such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (i) asserting the invalidity of all or any part of this
Agreement or any of the Basic Documents or (ii) that could materially
adversely affect the ability of BDFS or the Depositor to perform their
obligations under any of the Basic Documents to which either is a
party.
(vii) Such counsel is familiar with BDFS' standard operating
procedures relating to the acquisition of a perfected first priority
security interest in the vehicles financed by BDFS pursuant to retail
installment sale contracts in the
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ordinary course of their business. Assuming that these standard
procedures are followed with respect to the perfection of security
interests in the Financed Vehicles, BDFS has acquired or will acquire
a perfected first priority security interests in the Financed Vehicles
with respect to which it has originated Receivables sold by it to the
Depositor.
(viii) Immediately prior to the transfer of certain of the
Receivables by BDFS pursuant to the Sale and Servicing Agreement, BDFS
was the sole owner of all right, title and interest in the Receivables
and the other property transferred by it to the Depositor.
(ix) BDFS has all necessary licenses required by law in connection
with its performance as Servicer pursuant to the Sale and Servicing
Agreement.
(x) To such counsel's knowledge, there are no material legal or
governmental proceedings pending or threatened against BDFS or the
Depositor other than those disclosed in the Registration Statement and
the Prospectus.
(xi) To the best of such counsel's knowledge, there are no contracts
or documents of the Depositor which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the
Rules or Regulations which have not been so filed.
(xii) The statements in the Prospectus under the headings "Summary of
Terms -- State Tax Consequences" and "State Tax Consequences," to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been reviewed by such counsel
and accurately describe the material consequences to holders of the
Notes under the Florida tax code.
(xiii) The Receivables conveyed by BDFS to the Depositor are
chattel paper as defined in the Uniform Commercial Code as in effect
in the State of Florida.
(xiv) If the transfer of Receivables from BDFS to the Depositor is
considered a contribution, such contribution will be perfected upon
the filing of financing statements with the Secretary of State of the
State of Florida and Duval County, Florida. If the transfer of
Receivables from BDFS to the Depositor is considered a financing, such
financing will create a first priority perfected interest upon the
filing of financing statements with the Secretary of State of the
State of Florida and Duval County, Florida.
(xv) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and that
no facts have come to their attention which cause them to believe that
the information contained under the headings "The Servicer and the
Sponsor," "The Portfolio of Motor Vehicle Loans" and "The Depositor"
in the Registration Statement relating to the Notes as
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of its effective date, and the Prospectus, as of the date of this
Agreement, and any amendment or supplement thereto, as of its date
when it became effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus on its date contained or on the Closing Date contains, any
untrue statement of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel need not express
any view with respect to the financial, statistical or computational
material included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus or any
amendment or supplement thereto.
Such opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the State of New York.
(i) The Representative shall have received the opinion of Woodburn and
Wedge, Nevada counsel to the Depositor or such other counsel acceptable to the
Representative and counsel for the Underwriters, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of its
incorporation, with full corporate power and authority to own its
properties and conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which its
failure to qualify would have a material adverse effect upon the
business or the ownership of its property
(ii) The Sale and Servicing Agreement, the Loan Contribution
Agreement, the Trust Agreement and the Underwriting Agreement have
been duly authorized, executed and delivered by the Depositor.
(iii) The Depositor has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the Issuer
Order to the Trustee.
(iv) Neither the transfer of certain of the Receivables by the
Depositor to the Trustee on behalf of the Trust, nor the assignment by
the Depositor of the Trust Estate to the Trust, nor the grant by the
Trust of the security interest in the Collateral to the Owner Trustee
pursuant to the Indenture, nor the execution, delivery and performance
by the Depositor of the Basic Documents to which it is a party, nor
the consummation by the Depositor of the transactions contemplated
thereby will conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the
creation or imposition of any lien,
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charge or encumbrance upon any of the property or assets of the
Depositor, pursuant to the terms of the certificate of incorporation
or the by-laws of the Depositor or any statute, rule, regulation or
order of any governmental agency or body, or any court having
jurisdiction over the Depositor or its properties, or any agreement or
instrument known to me after due investigation to which the Depositor
is a party or by which the Depositor or any of its properties is
bound.
(v) The Receivables conveyed by the Depositor to the Trust are
chattel paper as defined in the Uniform Commercial Code as in effect
in the State of Nevada.
(vi) The Depositor has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the
Certificates.
(vii) The Depositor has full power and authority to sell and assign
the property to be sold and assigned to the Trust by it pursuant to
the Sale and Servicing Agreement and has duly authorized such sale and
assignment to the Trust by all necessary corporate action.
(viii) If the transfer of Receivables from the Depositor to the
Trust is considered a sale, such sale will be perfected upon the
filing of financing statements with the Secretary of State of the
State of Nevada. If the transfer of Receivables from the Depositor to
the Trust is considered a financing, such financing will create a
first priority perfected interest upon the filing of financing
statements with the Secretary of State of the State of Nevada.
Such opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the State of Nevada.
(j) The Representative shall have received an opinion addressed to it of
Stroock & Stroock & Lavan LLP, in its capacity as counsel to the Underwriters,
dated the Closing Date, with respect to (i) the consolidation of the assets and
liabilities of the Depositor with those of any of the Contributors under the
doctrine of substantive consolidation, (ii) the creation of (x) a "true
contribution" with respect to the transfer of the Receivables from each of the
Contributors to the Depositor and a "true sale" with respect to the transfer of
the Receivables from the Depositor to the Trust or (y) with respect to the
transfer of the Receivables to the Trust, a valid and binding security interest
in the Receivables and (iii) such other related matters as the Representative
shall reasonably require and the Depositor shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters. Such opinions shall be
limited to the laws of the State of New York and United States federal law.
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(k) The Representative shall have received an opinion of Dorsey & Whitney
LLP, counsel to the Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the effect
that:
(i) The Trustee has been duly organized as a national banking
association and is validly existing as a national banking association
in good standing under the laws of the United States of America.
(ii) The Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture and has taken
all necessary action to authorize the execution, delivery and
performance by it of the Indenture.
(iii) The Indenture has been duly executed and delivered by the
Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its
respective terms, except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Trustee in
accordance with the terms of the Indenture.
(v) Assuming a valid security exists in the property held in the
Reserve Account in favor of the Trustee, on behalf of the Noteholders,
such security interest is perfected.
(l) The Representative shall have received an opinion of Emmet, Marvin &
Martin, counsel to the Owner Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel for the Representative, to
the effect that:
(i) The Owner Trustee is a banking corporation duly incorporated and
organized and validly existing under the laws of the State of New York.
(ii) The Owner Trustee has the full corporate trust power to accept
the office of owner trustee under the Trust Agreement and to enter into and
perform its obligations under the Trust Agreement, the Co-Trustee
Agreement, the Indenture and the Sale and Servicing Agreement.
(iii) The execution and delivery of the Trust Agreement, the
Co-Trustee Agreement, the Indenture and the Sale and Servicing Agreement,
and the performance by the Owner Trustee of its obligations under the Trust
Agreement, the Co-Trustee Agreement, the Sale and Servicing Agreement and
the Indenture have been duly authorized by all necessary action of the
Owner Trustee and each has been duly executed and delivered by the Owner
Trustee.
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(iv) The Trust Agreement and the Co-Trustee Agreement each constitutes
the valid and binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with their terms.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement, the Co-Trustee Agreement, the Indenture and the Sale and
Servicing Agreement do not require any consent, approval or authorization
of, or any registration or filing with, any applicable governmental
authority.
(vi) Each of the Notes and Certificates has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Co-Trustee Agreement nor the
fulfillment of the terms thereof by the Owner Trustee will conflict with,
result in a breach or violation of, or constitute a default under any law
of the United States of America or the State of New York governing its
banking or trust powers or the charter, by-laws or other organizational
documents of the Owner Trustee.
(viii) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of
the Owner Trustee is required in connection with the execution and delivery
by the Owner Trustee of the Trust Agreement, the Co-Trustee Agreement, the
Indenture or the Sale and Servicing Agreement.
(m) The Representative shall have received an opinion of Richards, Layton
& Finger, special Delaware counsel for the Trust, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Representative, to the effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Owner Trustee and the Depositor enforceable against
the Owner Trustee and the Depositor in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, and (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law).
(ii) The Indenture and the Sale and Servicing Agreement
constitute the valid and binding obligations of the Trust enforceable
against the Trust in accordance with their terms.
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(iii) The Certificate of Trust has been duly filed with the
Secretary of State. The Trust has been duly formed and is validly
existing as a business trust under the Delaware Business Trust Act.
The Trust has the power and authority under the Trust Agreement and
the Act to execute and deliver the Indenture and the Sale and
Servicing Agreement, to issue the Notes and the Certificates and to
pledge the Trust Estate to the Trustee as security for the Notes.
(iv) Assuming that the Certificates have been duly executed and
issued by the Trust and duly authenticated by the Owner Trustee in
accordance with the Trust Agreement and delivered to and paid for
pursuant to the Initial Purchaser Agreement, the Certificates have
been validly issued and are entitled to the benefits of the Trust
Agreement.
(v) To the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Receivables has been duly created and has attached, upon the filing of
a UCC-1 financing statement with the Secretary of State of the State
of Delaware the Trustee will have a perfected security interest in
such Receivables and the proceeds thereof, and such security interest
will be prior to any other security interest that is perfected solely
by the filing of financing statements under the Delaware UCC,
excluding purchase money security interests under Section 9-312(4) of
the UCC and temporarily perfected security interests in proceeds under
Section 9-306(3) of the Delaware UCC.
(vi) No re-filing or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interest
except for the filing of continuation statements at five year
intervals.
(vii) Under Section 3805(b) of the Business Trust Act, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the
terms of the Trust Agreement.
(viii) Under Section 3805(c) of the Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good title to
the Receivables to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Certificateholders is the owner
of the Receivables.
(ix) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the Indenture and the Sale and
Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any governmental
authority of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
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(x) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement or, on behalf of the
Trust, the transactions contemplated in the Indenture and the Sale and
Servicing Agreement nor the fulfillment of the terms thereof by the
Owner Trustee will conflict with or result in a breach or violation of
any law of the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Initial Purchaser. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of Delaware.
(n) The Representative shall have received copies of each opinion of
counsel delivered to either rating agency, together with a letter addressed to
the Underwriters, dated the Closing Date, to the effect that the Underwriters
may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(o) The Representative shall have received a certificate dated the Closing
Date of the Depositor, executed by any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Depositor, in which
such officer shall state that, to the best of its knowledge after reasonable
investigation, (i) the representations and warranties of the Depositor,
contained in this Agreement and the Basic Documents to which it is a party are
true and correct in all material respects, (ii) that the Depositor, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (iii) since
the date of its incorporation, except as may be disclosed in the Prospectus or
in such certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, BDFS or the Depositor, has occurred.
(p) The Representative shall have received a certificate dated the Closing
Date of the Sponsor, executed by any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Sponsor in which
such officer shall state that, to the best of its knowledge after reasonable
investigation, (i) the representations and warranties of the Sponsor contained
in this Agreement, the Loan Contribution Agreement and the Sale and Servicing
Agreement are true and correct in all material respects, (ii) that the Sponsor
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to Closing Date the and
(iii) since December 31, 1997, except as may be disclosed in the Prospectus or
in such certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, BDFS or the Depositor, has occurred.
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(q) The Representative shall have received evidence satisfactory to it and
counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Owner Trustee or Trustee,
as the case may be, for filing in the appropriate filing offices reflecting (1)
the transfer of the interest in the Receivables, certain other property and the
proceeds thereof (A) from each Contributor to the Depositor and (B) from the
Depositor to the Trust, and (2) the grant of the security interest by the Trust
in the Receivables, certain other property and the proceeds thereof to the
Trustee.
(r) The Representative shall have received evidence satisfactory to it and
counsel for the Underwriters that, on the Closing Date, Barnett Bank, N.A. shall
have released the indebtedness assumed by the Depositor pursuant to the Loan
Contribution Agreement.
(s) The Class A Notes shall be rated "AAA" or its equivalent, and the
Class B Notes shall be rated at least "A" or its equivalent, in each case by
Moody's and S&P and neither corporation shall have placed the Notes under
surveillance or review with possible negative implications.
The Depositor will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) The Depositor and the Sponsor, jointly and severally, agree to
indemnify and hold harmless each Underwriter against any and all losses, claims,
damages or liabilities, joint or several, or any action in respect thereof
(including but not limited to, any loss, claim, damage or liability (or action
relating to purchases and sales of the Notes)), to which such Underwriter may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that neither the Depositor nor
the Sponsor shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Underwriters' Information
or the Derived Information.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Depositor and the Sponsor against any losses, claims, damages or liabilities to
which the Depositor or the Sponsor may become subject, under the Act, the
Exchange Act or otherwise, insofar as such
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<PAGE>
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement, the
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriters' Information, and will reimburse any legal or
other expenses reasonably incurred by the Sponsor or the Depositor in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above or (e) below, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
under subsection (a) or (b) above or (e) below, except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify any indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise that under this Section. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and to the extent that it may wish to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, except to
the extent provided in the next following paragraph, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonable satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or
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<PAGE>
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties, which firm shall be designated in writing by the
Underwriters, if the indemnified parties under this Section 7 consist of the
Underwriters, or by the Depositor and the Sponsor, if the indemnified parties
under this Section 7 consist of the Depositor and the Sponsor.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 7 (a), (b) and (e) hereof, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) Each Underwriter agrees to provide the Depositor with a copy of any
Derived Information (as defined in Section 7(h) below) no later than the date
preceding the date such Derived Information is required to be filed with the
Commission on a Current Report pursuant to the PSA Letters.
(e) Each Underwriter severally agrees, assuming all Sponsor-Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor and the Sponsor against any losses, claims, damages
or liabilities to which the Depositor or the Sponsor may become subject, under
the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of any material fact contained in the Derived Information
provided by such Underwriter, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse any
legal or other expenses reasonably incurred by the Sponsor or the Depositor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(f) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless the indemnified party under subsection (a) or (b)
above then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Depositor and
the Sponsor on the one hand and the Underwriters on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Depositor or the Sponsor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor and the Sponsor on the one hand and the Underwriters on the
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<PAGE>
other shall be deemed to be in such proportion that the Underwriters shall be
responsible for that portion represented by the underwriting discounts and
commissions received by the Underwriters (the "Spread"); and the Depositor and
the Sponsor shall be responsible for the balance. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or the Sponsor
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Depositor, the Sponsor and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (f) were
to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purposes) or by any other method of allocation which does
not take into account the equitable considerations referred to herein.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (f)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (f). Notwithstanding the
provisions of this subsection (f), in no case shall any Underwriter (except (x)
with respect to any Derived Information incorporated by reference into the
Registration Statement or Prospectus at the request of such Underwriter (i)
which had not been approved by the Depositor for use by the Underwriters or (ii)
for which the Depositor have not received a letter from Arthur Andersen & Co. in
form and substance satisfactory to them and (y) as may be provided in any
agreement among the Underwriters relating to the offering of the Notes) be
responsible for any amount (not including the fees and expenses of its counsel)
in excess of the Spread received by such Underwriter, as set forth on the cover
page of the Prospectus. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The obligations of the Depositor and the Sponsor under this Section
shall be in addition to any liability which the Depositor and the Sponsor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act or
the Exchange Act. The obligations of the Underwriters shall be in addition to
any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Depositor, and each of
its officers that signed the Registration Statement.
(h) For purposes of this Section 7, as to each Underwriter the term
"Derived Information" means such portion, if any, of the information delivered
to the Depositor by such Underwriter pursuant to subsection (d) hereof for
filing with the Commission in the Current Report as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
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(ii) does not constitute Sponsor-Provided Information (as defined
below); and
(iii) is of the type of information defined as "computational
materials," "structural term sheets" or "collateral term sheets" (as
such terms are interpreted in the PSA Letters).
"Sponsor-Provided Information" means any computer tape furnished to the
Underwriters by the Sponsor concerning the assets comprising the Trust.
(i) The Underwriters confirm that the information set forth in the last
paragraph on the cover page of the Prospectus and in the second paragraph under
the caption "Underwriting" in the Prospectus (together, the "Underwriters'
Information") is correct, and together with the Derived Information, constitutes
the only information furnished in writing to the Depositor by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
(j) (i) Each Underwriter severally represents and warrants to,
and covenants with, the Depositor and the Sponsor that all Derived
Information provided to the Depositor pursuant to this Section 7, as
of the date such information is so provided and as of the date such
information is filed by the Depositor with the Commission will not
include any untrue statement of a material fact, when considered in
conjunction with the Prospectus, and will not omit to state any
material fact necessary, when considered in conjunction with the
Prospectus, to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
(ii) Each Underwriter severally further covenants with the Depositor
that if any Derived Information required to be provided to the
Depositor pursuant to subsection (d) above is determined to contain
any information that is inaccurate or misleading, such Underwriter
(whether or not such Derived Information was provided to the Depositor
or filed by the Depositor with the Commission) shall promptly prepare
and deliver to the Depositor and each prospective investor which
received such Derived Information corrected Derived Information. All
information provided to the Depositor pursuant to this Section 7(i)
shall be provided within the time periods set forth in subsection (d)
above.
(iii) Each Underwriter severally covenants with the Depositor that
all Derived Information delivered by it to prospective investors shall
contain a legend satisfactory in substance to the Depositor.
(k) Notwithstanding any other provision herein, each Underwriter severally
agrees to pay all costs and expenses of the Depositor incurred in connection
with (i) the filing by the Depositor of any Derived Information with the
Commission and (ii) any action by the Depositor against such Underwriter to
enforce any of its rights set forth in this Section 7, including, without
limitation, legal fees and expenses.
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8. Default of Underwriter. If any of the Underwriters default in their
obligations to purchase Notes hereunder, and the aggregate principal amount of
Notes that the defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of the Notes, the Underwriters may make
arrangements satisfactory to the Depositor for the purchase of such Notes by
other persons including the non-defaulting Underwriter, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriter shall
be obligated, in proportion to its commitment hereunder, to purchase the Notes
that such defaulting Underwriter agreed but failed to purchase. If any of the
Underwriters so default and the aggregate principal amount of Notes with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Notes and arrangements satisfactory to the Underwriters and the
Depositor for the purchase of such Notes by other persons are not make within 36
hours after such default, this Agreement will terminate without liability on the
part of the Depositor, except as provided in Section 9 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve the Underwriter
from liability for its default.
9. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Depositor or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase
of the Notes by the Underwriters is not consummated, the Depositor shall remain
responsible for the expenses to be paid or reimbursed by the Sponsor pursuant to
Section 5(l) and the respective obligations of the Depositor, the Sponsor and
the Underwriters pursuant to Section 7 shall remain in effect. If for any
reason the purchase of the Notes by the Underwriters is not consummated (other
than because of a failure to satisfy the conditions set forth in items (iii),
(v) and (vi) of Section 6(c)), the Depositor will reimburse the Underwriters for
all out-of-pocket expenses reasonably incurred by them in connection with the
offering of the Notes.
10. Notices. Any written request, demand, authorization, direction, notice,
consent or waiver shall be personally delivered or mailed certified mail, return
receipt requested (or in the form of telex or facsimile notice, followed by
written notice as aforesaid) and shall be deemed to have been duly given upon
receipt, if sent to the Underwriters or the Representative, when delivered to
the Representative at Seven World Trade Center, New York, New York 10048,
Attention: Legal Department (fax # (212) 783-4009), if sent to the Sponsor when
delivered to 10401 Deerwood Park Boulevard, Jacksonville, Florida 32256,
Attention: General Counsel (Fax # (904) 987-2770) and if sent to the Depositor
when delivered to 3800 Howard Hughes Parkway, Las Vegas, Nevada 89109,
Attention: General Counsel (Fax # (702) 735-1811).
11. Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligations hereunder.
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<PAGE>
12. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the choice
of law provisions thereof.
14. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement,
and any action taken by Representative under this Agreement will be binding upon
all the Underwriters.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Depositor, the Sponsor
and the Underwriters in accordance with its terms.
Very truly yours,
BARNETT AUTO RECEIVABLES CORP.
By:__________________________
Name:
Title:
BARNETT DEALER FINANCIAL SERVICES, INC.
By:__________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
SALOMON BROTHERS INC
By:____________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the Several
Underwriters
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SCHEDULE I
OFFICES
<PAGE>
SCHEDULE II
Initial Principal
Balance of
Underwriter Class A-1 Notes
Salomon Brothers Inc.............................
Bear, Stearns & Co. Inc..........................
Credit Suisse First Boston Corporation...........
Morgan Stanley & Co. Incorporated................
Total
Initial Principal
Balance of
Underwriter Class A-2 Notes
Salomon Brothers Inc.............................
Bear, Stearns & Co. Inc..........................
Credit Suisse First Boston Corporation...........
Morgan Stanley & Co. Incorporated................
Total
Initial Principal
Balance of
Underwriter Class A-3 Notes
Salomon Brothers Inc..............................
Bear, Stearns & Co. Inc...........................
Credit Suisse First Boston Corporation............
Morgan Stanley & Co. Incorporated.................
Total
Initial Principal
Balance of
Underwriter Class A-4 Notes
Salomon Brothers Inc..............................
Bear, Stearns & Co. Inc...........................
Credit Suisse First Boston Corporation............
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<PAGE>
Morgan Stanley & Co. Incorporated.................
Total
Initial Principal
Balance of
Underwriter Class A-5 Notes
Salomon Brothers Inc...............................
Bear, Stearns & Co. Inc............................
Credit Suisse First Boston Corporation.............
Morgan Stanley & Co. Incorporated..................
Total
Initial Principal
Balance of
Underwriter Class B Notes
Salomon Brothers Inc................................
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SCHEDULE III
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
- - - -------- --------- -------- -------- ------- ------- ------
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class A-5 Notes
Class B Notes
Total Price to Public: $
Total Price to Depositor:
Underwriting Discounts
and Commissions: $
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<PAGE>
Exhibit 4.1
_________________________________________________________
SALE AND SERVICING
AGREEMENT
among
BARNETT AUTO TRUST 1997-A,
as Issuer,
BARNETT DEALER FINANCIAL SERVICES, INC.,
as Servicer and Sponsor,
and
BARNETT AUTO RECEIVABLES CORP.,
as Depositor
Dated as of September 1, 1997
_________________________________________________________
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.1. Definitions................................................. 1
SECTION 1.2. Other Definitional Provisions............................... 16
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables................................... 17
ARTICLE III
The Receivables
SECTION 3.1. Representations and Warranties of Depositor................ 18
SECTION 3.2. Repurchase upon Breach..................................... 23
SECTION 3.3. Custody of Receivable Files................................ 24
SECTION 3.4. Duties of Servicer as Custodian............................ 24
SECTION 3.5. Instructions; Authority To Act............................. 25
SECTION 3.6. Custodian's Indemnification................................ 25
SECTION 3.7. Effective Period and Termination........................... 25
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer......................................... 26
SECTION 4.2. Collection and Allocation of Receivable Payments........... 26
SECTION 4.3. Realization upon Receivables............................... 27
SECTION 4.4. Physical Damage Insurance; Other Insurance................. 27
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles..... 28
SECTION 4.6. Covenants of Servicer...................................... 28
SECTION 4.7. Purchase of Receivables upon Breach........................ 29
SECTION 4.8. Servicing Fee.............................................. 29
SECTION 4.9. Servicer's Certificate..................................... 29
SECTION 4.10. Annual Statement as to Compliance; Notice of Default....... 29
SECTION 4.11. Annual Independent Certified Public Accountants' Report.... 30
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables...................................... 31
SECTION 4.13. Servicer Expenses.......................................... 31
SECTION 4.14. Appointment of Subservicer................................. 31
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ARTICLE V
Distributions; Reserve Account; Statements to
Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts............................ 31
SECTION 5.2. Collections................................................ 34
SECTION 5.3. Application of Collections................................. 34
SECTION 5.4. Additional Deposits........................................ 35
SECTION 5.5. Distributions.............................................. 35
SECTION 5.6. Reserve Account............................................ 37
SECTION 5.7. Advances................................................... 37
SECTION 5.8. Statements to Certificateholders and Noteholders........... 37
SECTION 5.9. Net Deposits............................................... 39
SECTION 5.10 Reserved................................................... 38
ARTICLE VI
The Depositor
SECTION 6.1. Representations of Depositor............................... 39
SECTION 6.2. Corporate Existence........................................ 41
SECTION 6.3. Liability of Depositor; Indemnities........................ 41
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of, Depositor.............................................. 43
SECTION 6.5. Limitation on Liability of Depositor and Others............ 43
SECTION 6.6. Depositor May Own Certificates or Notes.................... 43
SECTION 6.7. Security Interest.......................................... 44
ARTICLE VII
The Servicer and the Sponsor
SECTION 7.1. Representations of BDFS.................................... 44
SECTION 7.2. Indemnities of BDFS........................................ 46
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of BDFS.................................................... 47
SECTION 7.4. Limitation on Liability of BDFS and Others................. 47
SECTION 7.5. BDFS Not To Resign as Servicer............................. 48
SECTION 7.6. Corporate Existence........................................ 48
ARTICLE VIII
Default
SECTION 8.1. Servicer Default........................................... 49
SECTION 8.2. Appointment of Successor................................... 50
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SECTION 8.3. Payment of Servicing Fee; Repayment of Advances............ 51
SECTION 8.4. Notification to Noteholders and Certificateholders......... 51
SECTION 8.5. Waiver of Past Defaults.................................... 51
ARTICLE IX
Termination
SECTION 9.1. Optional Purchase of All Receivables....................... 51
SECTION 9.2. Mandatory Sale of all Contracts............................ 52
ARTICLE X
Administrative Duties of the Servicer
SECTION 10.1. Administrative Duties...................................... 54
SECTION 10.2. Records.................................................... 56
SECTION 10.3. Additional Information To Be Furnished to the Issuer....... 56
ARTICLE XI
Miscellaneous Provisions
SECTION 11.1. Amendment................................................. 56
SECTION 11.2. Protection of Title to Trust.............................. 57
SECTION 11.3. Notices................................................... 59
SECTION 11.4. Assignment................................................ 60
SECTION 11.5. Limitations on Rights of Others........................... 60
SECTION 11.6. Severability.............................................. 60
SECTION 11.7. Separate Counterparts..................................... 60
SECTION 11.8. Headings.................................................. 60
SECTION 11.9. Governing Law............................................. 60
SECTION 11.10. Assignment to Trustee..................................... 60
SECTION 11.11. Nonpetition Covenant...................................... 61
SECTION 11.12. Limitation of Liability of Owner Trustee and Trustee...... 61
SECTION 11.13. Independence of the Servicer.............................. 61
SECTION 11.14. No Joint Venture.......................................... 61
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivables
EXHIBITS
Exhibit A - Form of Monthly Securityholder Statement
Exhibit B - Form of Servicer's Certificate
Exhibit C - Auction Procedures
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SALE AND SERVICING AGREEMENT dated as of September 1,
1997, among BARNETT AUTO TRUST 1997-A, a Delaware business
trust, as issuer (the "Issuer"), BARNETT AUTO RECEIVABLES
CORP., as depositor (the "Depositor") and BARNETT DEALER
FINANCIAL SERVICES, INC., ("BDFS") as servicer (the
"Servicer") and sponsor (the "Sponsor").
WHEREAS the Issuer desires to purchase a portfolio of receivables
arising in connection with motor vehicle retail installment sale contracts and
other motor vehicle installment sale contracts generally purchased by the
Originators (as hereinafter defined) from motor vehicle dealers, all of which
receivables were acquired by the Depositor pursuant to the Loan Contribution
Agreement;
WHEREAS the Sponsor as of the date hereof has caused the Depositor to
form the Issuer;
WHEREAS the Depositor is willing to sell such receivables to the
Issuer and assign its rights but none of its obligations under the Loan
Contribution Agreement to the Issuer; and
WHEREAS the Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Adviser" has the meaning specified in Section 9.2.
"Actuarial Receivable" means any Receivable under which the portion of
a payment allocable to principal and the portion of a payment allocable to
interest is determined in accordance with the Scheduled Payment.
"Advance" means the amount, as of the close of business on the last
day of a Collection Period, which the Servicer is required to advance on the
related Actuarial Receivable pursuant to Section 5.7(a).
"Agreement" means this Sale and Servicing Agreement, as the same may
be amended and supplemented from time to time.
<PAGE>
"Amount Financed" with respect to a Receivable means the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and any related costs.
"Auction" has the meaning specified in Section 9.2.
"Auction Procedures" has the meaning specified in Section 9.2.
"Auction Property" has the meaning specified in Section 9.2.
"Available Principal" means, with respect to any Distribution Date,
the sum of the following amounts without duplication: (a) that portion of all
collections on the Receivables allocable to principal in respect of the
preceding Collection Period using (x) in the case of a Simple Interest
Receivable, the Simple Interest Method and (y) in the case of an Actuarial
Receivable, the actuarial method (including, with respect to Actuarial
Receivables, amounts withdrawn from the Payahead Account and allocable to
principal and excluding amounts deposited into the Payahead Account and
allocable to principal, in each case, in respect of the preceding Collection
Period); (b) Liquidation Proceeds attributable to the principal amount of
Receivables which became Liquidated Receivables during the preceding Collection
Period in accordance with the Servicer's customary servicing procedures; (c) all
Advances made by the Servicer of principal due on the Actuarial Receivables in
respect of the preceding Collection Period; (d) to the extent attributable to
principal, the Purchase Amount of each Receivable repurchased by the Depositor
or the Sponsor or purchased by the Servicer as of the close of business on the
last day of the preceding Collection Period; and (e) partial prepayments on
Receivables in respect of the preceding Collection Period relating to refunds of
extended warranty contract costs or of credit life or disability insurance
policy premiums, but only if such costs or premiums were financed by the
respective Obligor and only to the extent not included in clause (a) above;
provided, however, that in calculating the Available Principal all payments and
proceeds (including Liquidation Proceeds) of any Receivables (i) repurchased by
the Depositor or the Sponsor or purchased by the Servicer the Purchase Amount of
which has been included in the Available Principal on a prior Distribution Date,
and (ii) distributed to the Servicer, with respect to such Distribution Date, as
reimbursement for Outstanding Advances in accordance with Section 5.7 shall all
be excluded.
"Balloon Loan" means a Receivable originated with a stated maturity of
less than the period of time of the corresponding amortization schedule.
"Balloon Payment" means the final payment required to be made under a
Balloon Loan.
"Basic Documents" means the Certificate of Trust, the Trust Agreement,
the Indenture, the Loan Contribution Agreement, the Depository Agreement and
other documents and certificates delivered in connection therewith.
"BDFS" means Barnett Dealer Financial Services, Inc., a Florida
corporation.
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"Certificate" means a Trust Certificate (as defined in the Trust
Agreement).
"Certificateholder" has the meaning assigned to such term in the Trust
Agreement.
"Certificateholders' Distributable Amount" means, with respect to any
Distribution Date, the amounts to be distributed to the Certificateholders
pursuant to Section 5.6(b).
"Class A Noteholders' Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A Noteholders' Principal Distributable
Amount and the Class A Noteholders' Interest Distributable Amount.
"Class A Noteholders' Interest Carryover Shortfall" means, with
respect to any Distribution Date, the excess of the Class A Noteholders' Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Class A Noteholders' Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that is actually
deposited in the Note Distribution Account with respect to the Class A Notes on
such preceding Distribution Date, plus interest on the amount of interest due
but not paid to Class A Noteholders on the preceding Distribution Date, to the
extent permitted by law, at the Interest Rate borne by the Class A Notes from
such preceding Distribution Date through the current Distribution Date.
"Class A Noteholders' Interest Distributable Amount" means, with
respect to any Distribution Date, the sum of the Class A Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and the Class A
Noteholders' Interest Carryover Shortfall for such Distribution Date. Interest
on the Class A-1 Notes shall be computed on the basis of the actual number of
days in a 360 day year. Interest on the Class A Notes other than the Class A-1
Notes shall be computed on the basis of a 360 day year of twelve 30-day months.
"Class A Noteholders' Monthly Interest Distributable Amount" means,
with respect to any Distribution Date and the Class A Notes, the product of
(i)(A) in the case of the Class A-1 Notes, the product of the Interest Rate for
such class and a fraction, the numerator of which is the number of days elapsed
from and including the prior Distribution Date (or, in the case of the first
Distribution Date, from and including September 15, 1997) to but excluding such
Distribution Date and the denominator of which is 360 and (B) in the case of
each other class of Class A Notes, one-twelfth of the Interest Rate for such
class and (ii) the outstanding principal balance of such class on the
immediately preceding Distribution Date, after giving effect to all
distributions of principal to Noteholders of such class on such Distribution
Date (or, in the case of the first Distribution Date, on the Closing Date).
"Class A Noteholders' Monthly Principal Distributable Amount" means,
with respect to any Distribution Date, the Class A Noteholders' Percentage of
the Principal Distribution Amount.
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"Class A Noteholders' Percentage" means 100% until the point in time
at which the Class A Notes have been paid in full and zero thereafter.
"Class A Noteholders' Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class A Noteholders' Monthly
Principal Distributable Amount and any outstanding Class A Noteholders'
Principal Carryover Shortfall from the preceding Distribution Date over the
amount in respect of principal that is actually deposited in the Note
Distribution Account with respect to the Class A Notes.
"Class A Noteholders' Principal Distributable Amount" means, with
respect to any Distribution Date, the sum of the Class A Noteholder's Monthly
Principal Distributable Amount for such Distribution Date and the Class A
Noteholders' Principal Carryover Shortfall as of the close of the preceding
Distribution Date; provided, however, that the Class A Noteholders' Principal
Distributable Amount shall not exceed the outstanding principal balance of the
Class A Notes. In addition, on the Final Scheduled Distribution Date of each
class of Class A Notes, the principal required to be deposited in the Note
Distribution Account will include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Distribution Date and allocable to principal) to reduce the Outstanding Amount
of such class of Class A Notes to zero.
"Class B Noteholders' Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Noteholders' Principal Distributable
Amount and the Class B Noteholders' Interest Distributable Amount.
"Class B Noteholders' Interest Carryover Shortfall" means, with
respect to any Distribution Date, the excess of the Class B Noteholders' Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Class B Noteholders' Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that is actually
deposited in the Note Distribution Account with respect to the Class B Notes on
such preceding Distribution Date, plus interest on the amount of interest due
but not paid to Class B Noteholders on the preceding Distribution Date, to the
extent permitted by law, at the Interest Rate borne by the Class B Notes from
such preceding Distribution Date through the current Distribution Date.
"Class B Noteholders' Interest Distributable Amount" means, with
respect to any Distribution Date, the sum of the Class B Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and the Class B
Noteholders' Interest Carryover Shortfall for such Distribution Date. Interest
on the Class B Notes shall be computed on the basis of a 360 day year of twelve
30-day months.
"Class B Noteholders' Monthly Interest Distributable Amount" means,
with respect to any Distribution Date and the Class B Notes, the product of (i)
one-twelfth of the Interest Rate for such class and (ii) the outstanding
principal balance of such class on the immediately preceding Distribution Date,
after giving effect to all distributions of principal to
4
<PAGE>
Noteholders of such class on such Distribution Date (or, in the case of the
first Distribution Date, on the Closing Date).
"Class B Noteholders' Monthly Principal Distributable Amount" means,
with respect to any Distribution Date, the Class B Noteholders' Percentage of
the Principal Distribution Amount.
"Class B Noteholders' Percentage" means 0% until the point in time at
which the Class B Notes have been paid in full and 100% thereafter.
"Class B Noteholders' Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class B Noteholders' Monthly
Principal Distributable Amount and any outstanding Class B Noteholders'
Principal Carryover Shortfall from the preceding Distribution Date over the
amount in respect of principal that is actually deposited in the Note
Distribution Account with respect to the Class B Notes.
"Class B Noteholders' Principal Distributable Amount" means, with
respect to any Distribution Date, the sum of the Class B Noteholder's Monthly
Principal Distributable Amount for such Distribution Date and the Class B
Noteholders' Principal Carryover Shortfall as of the close of the preceding
Distribution Date; provided, however, that the Class B Noteholders' Principal
Distributable Amount shall not exceed the outstanding principal balance of the
Class B Notes. In addition, on the Final Scheduled Distribution Date of the
Class B Notes, the principal required to be deposited in the Note Distribution
Account will include the amount necessary (after giving effect to the other
amounts to be deposited in the Note Distribution Account on such Distribution
Date and allocable to principal) to reduce the Outstanding Amount of the Class B
Notes to zero.
"Closing Date" means September 25, 1997.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1.
"Collection Period" means a calendar month, except with respect to the
first Collection Period, which shall be the period from the Cutoff Date to
September 30, 1997. Any amount stated "as of the close of business on the last
day of a Collection Period" shall give effect to the following calculations as
determined as of the end of the day on such last day: (1) all applications of
collections, (2) all current and previous Payaheads, (3) all applications of
Payahead Balances, (4) all Advances and reductions of Outstanding Advances and
(5) all distributions to be made on the immediately following Distribution Date.
"Computer Tape" means the computer tapes furnished to the Trustee
describing certain characteristics of the Receivables as of the Cutoff Date.
"Contract" means a motor vehicle retail installment sale contract.
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<PAGE>
"Contract Rate" of a Receivable means the annual rate of finance
charges stated in the related Contract.
"Cram Down Loss" means, with respect to a Receivable if a court of
appropriate jurisdiction in a bankruptcy or insolvency proceeding shall have
issued an order reducing the amount owed on such Receivable or otherwise
modifying or restructuring the scheduled payments to be made on such Receivable,
an amount equal to (i) the excess of the principal balance of such Receivable
immediately prior to such order over the principal balance of such Receivable as
so reduced and/or (ii) if such court shall have issued an order reducing the
effective rate of interest on such Receivable, the net present value (using as
the discount rate the higher of the Contract Rate on such Receivable or the rate
of interest, if any, specified by the court in such order) of the scheduled
payments as so modified or restructured. A "Cram Down Loss" shall be deemed to
have occurred on the date of issuance of such order.
"Cutoff Date" means September 1, 1997.
"Dealer" means a motor vehicle dealer who sold a Financed Vehicle and
who originated and assigned the respective Receivable to an Originator under an
existing agreement between such Dealer and such Originator.
"Dealer Agreement" means any agreement between a Dealer and an
Originator relating to the acquisition of Receivables from a Dealer by such
Originator.
"Delivery" when used with respect to Trust Account Property means:
(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 Trustee or its nominee
or custodian by physical delivery to the Trustee or its nominee or custodian
endorsed to, or registered in the name of, the 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 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 belonging to the Trustee or its nominee or custodian and the
sending by such financial intermediary of a confirmation of the purchase of such
certificated security by the Trustee or its nominee or custodian, or (ii) by
delivery thereof to a "clearing corporation" (as defined in Section 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 securities account of a financial intermediary by the
amount of such certificated security, the identification by the clearing
corporation of the certificated securities for the sole and exclusive account of
the financial intermediary, the maintenance of such certificated securities by
such clearing corporation or a "custodian bank" (as defined in Section 8-102(4)
of the UCC) or the nominee of either subject to the clearing corporation's
exclusive control, the sending of a
6
<PAGE>
confirmation by the financial intermediary of the purchase by the Trustee 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 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 Trustee or its nominee or
custodian; and such additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such Trust
Account Property to the 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 procedures, all
in accordance with applicable law, including applicable Federal regulations and
Articles 8 and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal Reserve
Bank by a financial intermediary which is also a "depository" 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 Trustee or its nominee or custodian of the purchase by the 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 Trustee or its nominee or custodian and
indicating that such custodian holds such Trust Account Property solely as agent
for the Trustee or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect complete transfer of
ownership of any such Trust Account Property to the 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 Trust Account 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 confirmation by the
financial intermediary of the purchase by the 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 Trustee or its nominee or custodian.
"Depositor" means Barnett Auto Receivables Corp., as the depositor of
the Receivables, and each successor to Barnett Auto Receivables Corp., (in the
same capacity) to the extent permitted hereunder.
"Depository Agreement" means the Note Depository Agreement.
7
<PAGE>
"Determination Date" means, with respect to any Distribution Date, the
earlier of the eighth Business Day of the month in which a Distribution Date
occurs and the fourth Business Day preceding such Distribution Date.
"Distribution Date" means, with respect to each Collection Period, the
fifteenth day of the following month, or if such day is not a Business Day, the
immediately following Business Day, commencing in October 1997.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution (other than the Depositor or any
affiliate of the Depositor) 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 corporate trust powers and acting as
trustee for funds deposited in such account, so long as any of the securities of
such depository institution have a credit rating from each Rating Agency in one
of its generic rating categories which signifies investment grade.
"Eligible Institution" means a depository institution (other than the
Depositor or any affiliate of the Depositor) 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), which (i) has (A) either a
long-term senior unsecured debt rating of AAA or a short-term senior unsecured
debt or certificate of deposit rating of A-l+ or better by Standard & Poor's and
(B)(1) a long-term senior unsecured debt rating of Al or better and (2) a
short-term senior unsecured debt rating of P-l or better by Moody's, or any
other long-term, short-term or certificate of deposit rating acceptable to the
Rating Agencies and (ii) whose deposits are insured by the Federal Deposit
Insurance Corporation. If so qualified, the Owner Trustee or the Trustee may be
considered an Eligible Institution.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution (including the Depositor or any Affiliate of the
Depositor) or trust company incorporated under the laws of the United States of
America or any state thereof or the District of Columbia (or any domestic branch
of a foreign bank) and subject to supervision and examination by federal or
state banking or depository institution authorities (including depository
receipts issued by any such institution or trust company as custodian with
respect to any obligation referred to in clause (a) above or portion of such
obligation for the benefit of the holders of such depository receipts);
provided, however, that at the time of the investment or contractual commitment
to invest therein (which shall be deemed to be made again each time funds are
reinvested following each Distribution Date), the commercial paper or other
short-term senior unsecured debt obligations (other than such obligations the
rating of which is based on the
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credit of a Person other than such depository institution or trust company) of
such depository institution or trust company shall have a credit rating from
Standard & Poor's of A-1+ and from Moody's of P-1;
(c) commercial paper (including commercial paper of the
Depositor or any Affiliate of the Depositor) having, at the time of the
investment or contractual commitment to invest therein, a rating from Standard &
Poor's of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including funds for which
the Depositor, the Trustee or the Owner Trustee or any of their respective
Affiliates is investment manager or advisor) having a rating from Standard &
Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) 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)
referred to in clause (b) above; and
(g) any other investment which would not cause either Rating
Agency to downgrade or withdraw its then current rating of any class of the
Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Final Scheduled Distribution Date" means with respect to (i) the
Class A-1 Notes, the October 1998 Distribution Date, (ii) the Class A-2 Notes,
the July 2000 Distribution Date, (iii) the Class A-3 Notes, the November 2001
Distribution Date, (iv) the Class A-4 Notes, the September 2002 Distribution
Date, (iv) the Class A-5 Notes, the February 2003 Distribution Date, and (vi)
the Class B Notes, the January 2005 Distribution Date.
"Final Scheduled Maturity Date" means September 10, 2004
"Financed Vehicle" means a new or used automobile, (including
passenger car, minivan, sport/utility vehicle or light truck) together with all
accessions thereto, securing an Obligor's indebtedness under the respective
Receivable.
"Indenture" means the Indenture dated as of September 1, 1997, between
the Issuer and the Trustee, as the same may be amended and supplemented from
time to time.
"Initial Pool Balance" means the Pool Balance as of the Cutoff Date,
which is $602,124,240.78.
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"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property 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
(including any receiver appointed under the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended), liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation of
such Person's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or (b) the commencement by such
Person 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
such Person to the entry of an order for relief in an involuntary case under any
such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the benefit of
creditors, or the failure by such Person generally to pay its debts as such
debts become due, or the taking of action by such Person in furtherance of any
of the foregoing.
"Interest Distribution Amount" means, with respect to any Distribution
Date, the sum of the following amounts without duplication: (a) that portion of
all collections on the Receivables allocable to interest in respect of the
preceding Collection Period using (x) in the case of a Simple Interest
Receivable, the Simple Interest Method and (y) in the case of an Actuarial
Receivable, the actuarial method (including, with respect to Actuarial
Receivables, amounts withdrawn from the Payahead Account and allocable to
interest, and excluding amounts deposited into the Payahead Account and
allocable to interest, in each case in respect of the preceding Collection
Period); (b) Liquidation Proceeds attributable to interest on the Receivables
which became Liquidated Receivables during the preceding Collection Period in
accordance with the Servicer's customary servicing procedures; (c) all Advances
made by the Servicer of interest due on the Actuarial Receivables; (d) the
Purchase Amount of each Receivable repurchased by the Depositor or the Sponsor
or purchased by the Servicer as of the close of business on the last day of the
preceding Collection Period to the extent attributable to accrued interest on
such Receivable; (e) Recoveries for such Collection Period and (f) Investment
Earnings for such Distribution Date; provided, however, that in calculating the
Interest Distribution Amount (i) all payments and proceeds (including
Liquidation Proceeds) of any Receivables repurchased by the Depositor or the
Sponsor or purchased by the Servicer the Purchaser Amount of which has been
included in the Interest Distribution Amount on a prior Distribution Date, and
(ii) distributed to the Servicer with respect to such Distribution Date, as
reimbursement for Outstanding Advances in accordance with Section 5.7 shall all
be excluded.
"Investment Earnings" means, with respect to any Distribution Date,
the investment earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts (except the Payahead Account) to be deposited into
the Collection Account on such Distribution Date pursuant to Section 5.1(b).
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"Issuer" means Barnett Auto Trust 1997-A.
"Lien" means a security interest, lien, charge, pledge or encumbrance
of any kind, other than tax liens, mechanics' liens and any liens which attach
to the respective Receivable by operation of law as a result of any act or
omission by the related Obligor.
"Liquidated Receivables" means, Receivables (i) which have been
liquidated by the Servicer through the sale of the related Financed Vehicle,
(ii) as to which all or a portion representing 10% or more of a scheduled
payment due is 150 or more days delinquent or (iii) with respect to which
proceeds have been received which, in the Servicer's judgment, constitute the
final amounts recoverable in respect of such Receivable.
"Liquidation Distribution Date" has the meaning specified in
Section 9.2.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the moneys collected in respect thereof, from whatever source (other
than any proceeds from any Dealer commission) on a Liquidated Receivable during
the Collection Period in which such Receivable became a Liquidated Receivable,
net of the sum of any amounts expended by the Servicer in connection with such
liquidation and any amounts required by law to be remitted to the Obligor on
such Liquidated Receivable.
"Loan Contribution Agreement" means the Loan Contribution Agreement
dated as of September 1, 1997 among the Originators and the Depositor.
"Moody's" means Moody's Investors Service, Inc., or its successor.
"Net Losses" means the sum of Realized Losses and Cram Down Losses
minus Recoveries for any Collection Period.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Note Pool Factor" for each class of Notes as of the close of business
on a Distribution Date means a seven-digit decimal figure equal to the
outstanding principal balance of such class of Notes divided by the original
outstanding principal balance of such class of Notes. The Note Pool Factor for
the Notes will be 1.0000000 as of the Cutoff Date; thereafter, the Note Pool
Factor for each class of Notes will decline to reflect reductions in the
outstanding principal balance of such class of Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under the Receivable.
"Officers' Certificate" means a certificate signed by (a) the
president, any senior vice president or any vice president and (b) a secretary
or assistant secretary of the Depositor, the Sponsor or the Servicer, as
appropriate, provided that no one person may sign in a capacity fulfilling both
clause (a) and clause (b).
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"Originators" means the direct and indirect subsidiaries of Barnett
Bank, N.A. which contributed Receivables to the Depositor pursuant to the Loan
Contribution Agreement.
"Outstanding Advances" on the Actuarial Receivables means the sum, as
of the close of business on the last day of a Collection Period, of all Advances
as reduced as provided in Section 5.7(a).
"Owner Trust Estate" has the meaning assigned to such term in the
Trust Agreement.
"Owner Trustee" means The Bank of New York, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, its successors
in interest or any successor Owner Trustee under the Trust Agreement.
"Payahead" on an Actuarial Receivable means the amount, as of the
close of business on the last day of a Collection Period, computed in accordance
with Section 5.3 with respect to such Receivable.
"Payahead Account" means the account designated as such, established
and maintained pursuant to Section 5.1.
"Payahead Balance" on an Actuarial Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Payaheads made
by or on behalf of the Obligor with respect to such Actuarial Receivable, as
reduced by applications of previous Payaheads with respect to such Actuarial
Receivable, pursuant to Sections 5.3 and 5.7.
"Percentage Interest" shall mean, with respect to any Certificate, the
percentage interest of ownership in the Trust represented thereby as set forth
on the face thereof.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" as of the close of business on the last day of a
Collection Period means the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
"Principal Balance" of a Receivable, as of the close of business on
the last day of a Collection Period, means the Amount Financed minus the sum of
(i)(a) with respect to a Simple Interest Receivable, that portion of all
payments made by or on behalf of the related Obligor on or prior to such day and
allocable to principal using the Simple Interest Method and (b) in the case of
an Actuarial Receivable, that portion of all Scheduled Payments due on or prior
to such day allocable to principal using the actuarial method, (ii) any refunded
portion of
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extended warranty protection plan costs or of physical damage, theft, credit
life, credit accident or health insurance premiums included in the Amount
Financed, (iii) any payment of the Purchase Amount with respect to the
Receivable allocable to principal, (iv) any prepayment in full or any partial
prepayments applied to reduce the Principal Balance of the Receivable and (v)
Cram Down Losses in respect of such Receivable.
"Principal Distribution Amount" means, with respect to any
Distribution Date, the sum of (i) (a) with respect to Simple Interest
Receivables, that portion of all collections on the Receivable allocable to
principal in respect of the preceding Collection Period and (b) with respect to
Actuarial Receivables, the sum of (x) the amount of all Scheduled Payments
allocable to principal due during the preceding Collection Period and (y) the
portion of all prepayments in full allocable to principal received during the
preceding Collection Period, in the case of both (a) and (b), without regard to
any extensions or modifications thereof effected after the Cutoff Date, other
than with respect to any extensions or modifications required in connection with
Cram Down Losses during such Collection Period; (ii) the principal balance of
each Receivable that was repurchased by the Depositor or the Sponsor, or
purchased by the Servicer, in each case, as of the close of business on the last
day of the preceding Collection Period (except to the extent included in (i)
above); (iii) the principal balance of each Liquidated Receivable which became
such during the preceding Collection Period (except to the extent included in
(i) above); (iv) partial prepayments on Receivables in respect of the preceding
Collection Period relating to refunds of extended service contracts, or of
physical damage, credit life, credit accident or heath insurance premium,
disability insurance policy premiums, but only if such costs or premiums were
financed by the respective Obligor and only to the extent not included in clause
(i) above; and (v) the aggregate amount of Cram Down Losses during such
Collection Period.
"Purchase Amount" means the amount, as of the close of business on the
last day of a Collection Period, required to prepay in full the respective
Receivable under the terms thereof including interest at the Contract Rate to
the end of the month of purchase (without giving effect to Outstanding
Advances).
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by (i) the Servicer pursuant to
Section 4.7 or (ii) repurchased by the Depositor or the Sponsor pursuant to
Section 3.2.
"Rating Agency" means Moody's and/or Standard & Poor's. 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 Depositor, notice of which designation shall be given to the
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that (i)
each Rating Agency (other than Standard & Poor's) shall have been given 10 days'
prior notice thereof (or such shorter period as shall be acceptable to the
Rating Agencies) and that none of the Rating Agencies shall have notified the
Depositor, the Servicer, the Owner Trustee or the Trustee in writing that such
action will, in and of itself, result in a reduction or withdrawal of the then
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current rating of any class of the Notes and (ii) Standard & Poor's, if it is
still a Rating Agency, shall have notified the Depositor, the Servicer, the
Owner Trustee or the Trustee in writing that such action will not, in and of
itself, result in a reduction or the withdrawal of the then current rating of
any class of the Notes.
"Realized Losses" means the excess of the Principal Balance of any
Liquidated Receivable over Liquidation Proceeds to the extent allocable to
principal.
"Receivable" means any Contract listed on Schedule A (which Schedule
may be in the form of microfiche) but excluding Liquidated Receivables and
Purchased Receivables.
"Receivable Files" means the documents specified in Section 3.3.
"Recoveries" means, with respect to any Liquidated Receivable, monies
collected in respect thereof, from whatever source (other than any proceeds from
any Dealer commission), during any Collection Period following the Collection
Period in which such Receivable became a Liquidated Receivable, net of the sum
of any amounts expended by the Servicer for the account of the Obligor and any
amounts required by law to be remitted to the Obligor.
"Related Financed Vehicle" means a Financed Vehicle securing the
Obligor's indebtedness under a Related Receivable.
"Related Originator" means, with respect to any Receivable, the
Originator who originated such Receivable and who contributed such Receivable to
the Depositor pursuant to the Loan Contribution Agreement.
"Related Receivable" means, with respect to any Originator, a
Receivable originated by such Originator who contributed such Receivable to the
Depositor pursuant to the Loan Contribution Agreement.
"Reserve Account" means the account designated as such, established
and maintained pursuant to Section 5.1.
"Reserve Account Initial Deposit" means an amount equal to
$12,042,484.80.
"Reserve Account Transfer Amount" means an amount equal to the lesser
of (i) the amount of cash or other immediately available funds on deposit in the
Reserve Account on such Distribution Date (before giving effect to any
withdrawals therefrom relating to such Distribution Date) or (ii) the amount, if
any, by which (x) the sum of the Total Servicing Fee, the Class A Noteholders'
Interest Distributable Amount, the Class B Noteholders' Distributable Amount,
the Class A Noteholders' Principal Distributable Amount and the Class B
Noteholders' Principal Distributable Amount for such Distribution Date exceeds
(y) the sum of the Interest Distribution Amount and the Available Principal for
such Distribution Date.
"Scheduled Payment" on an Actuarial Receivable means that portion of
the payment required to be made by the Obligor during the respective Collection
Period sufficient to
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amortize the Principal Balance under the actuarial method over the term of the
Actuarial Receivable (except, in the case a Balloon Loan, to the extent
necessary to amortize the Principal Balance to the amount of the Balloon Payment
over the life of the Actuarial Receivable) and to provide interest at the
Contract Rate.
"Securities" means the Notes and the Certificates.
"Securities Act" means the Securities Act of 1933, as amended.
."Securityholder" means a Noteholder or Certificateholder.
"Servicer" means BDFS, the servicer of the Receivables, and each
successor to BDFS, (in the same capacity) pursuant to Section 7.3 or 8.2.
"Servicer Default" means an event specified in Section 8.1.
"Servicer's Certificate" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.9, substantially in the form of Exhibit
B.
"Servicing Fee" has the meaning specified in Section 4.8.
"Servicing Fee Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the period of
time elapsed since the preceding payment of interest was made and the remainder
of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to principal and the portion of a payment
allocable to interest is determined in accordance with the Simple Interest
Method.
"Specified Reserve Account Balance" means, with respect to any
Distribution Date the greater of (a) 5.0% of the sum of the aggregate
outstanding principal amount of the Notes on such Distribution Date (after
giving effect to all payments on the Notes to be made on such Distribution
Date), or (b) 2.0% of the sum of the aggregate initial principal balance of the
Notes.
"Sponsor" means BDFS, as the sponsor of the Issuer.
"Standard & Poor's" means Standard & Poor's Ratings Group, or its
successor.
"Total Distribution Amount" means, for each Distribution Date, the sum
of (i) the Interest Distribution Amount, (ii) the Available Principal and (iii)
the Reserve Account Transfer Amount, in each case in respect of such
Distribution Date.
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"Total Servicing Fee" means with respect to each Distribution Date the
Servicing Fee for the related Collection Period and all accrued and unpaid
Servicing Fees for prior Collection Periods.
"Transfer Date" means, with respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Reserve Account Initial Deposit, and all
proceeds of the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 5.1.
"Trust Agreement" means the Trust Agreement dated as of September 1,
1997, between the Depositor and the Owner Trustee, as the same may be amended
and supplemented from time to time.
"Trust Officer" means, (i) in the case of the Trustee, any Officer
within the Corporate Trust Office of the Trustee, including any Vice President,
Assistant Vice President, Assistant Treasurer, Assistant Secretary or any other
officer of the Trustee customarily 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 knowledge of and familiarity with the particular subject and (ii)
in the case of the Owner Trustee, any officer in the corporate trust office of
the Owner Trustee with direct responsibility for the administration of this
Agreement or any of the Basic Documents on behalf of the Owner Trustee.
"Trust Property" has the meaning assigned thereto in Section 2.1.
"Trustee" means the Person acting as Trustee under the Indenture, its
successors in interest and any successor trustee under the Indenture.
SECTION 1.2. Other Definitional Provisions. (a) Capitalized terms
used herein and not otherwise defined herein have the meanings assigned to them
in the Indenture, or, if not defined therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(c) As used in this Agreement, in any instrument governed hereby and
in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not
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defined in this Agreement or in any such instrument, certificate or other
document, and accounting terms partly defined in this Agreement or in any such
instrument, certificate or other document to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles as in effect on the date of this Agreement or any such instrument,
certificate or other document, as applicable. To the extent that the
definitions of accounting terms in this Agreement or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such instrument, certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables. In consideration of the
Issuer's delivery to or upon the order of the Depositor on the Closing Date of
the Certificates and of the net proceeds from the sale of the Notes and the
other amounts to be distributed from time to time to the Depositor in accordance
with the terms of this Agreement, the Depositor does hereby sell, transfer,
assign, set over and otherwise convey to the Issuer, without recourse (subject
to the obligations herein):
(a) all right, title and interest of the Depositor in and to the
Receivables, and all moneys received thereon (other than any proceeds from any
Dealer commission), on or after the Cutoff Date and, with respect to Receivables
which are Actuarial Receivables, all monies received thereon prior to the Cutoff
Date that are due on or after the Cutoff Date;
(b) all right, title and interest of the Depositor in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Depositor in the Financed Vehicles;
(c) all right, title and interest of the Depositor in and to any
proceeds from claims on any physical damage, repossession, loss, skip, credit
life and credit accident, vendor's single interest and health insurance policies
or certificates relating to the Financed Vehicles or the Obligors;
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(d) all right, title and interest of the Depositor in and to refunds
for the costs of extended service contracts with respect to Financed Vehicles,
refunds of unearned premiums with respect to credit life and credit accident and
health insurance policies or certificates covering an Obligor or Financed
Vehicle or his or her obligations with respect to a Financed Vehicle and any
recourse to Dealers for any of the foregoing;
(e) the interest of the Depositor in any proceeds from any Receivable
repurchased by a Dealer, pursuant to a Dealer Agreement, as a result of a breach
of representation or warranty in the related Dealer Agreement or a default by an
Obligor resulting in the repossession of the Financed Vehicle under such Dealer
Agreement;
(f) all right, title and interest in all funds on deposit from time
to time in the Trust Accounts, including the Reserve Account Initial Deposit,
and in all investments and proceeds thereof (including all income thereon);
(g) all right, title and interest of the Depositor under the Loan
Contribution Agreement; and
(h) the proceeds of any and all of the foregoing (the items specified
in clauses (a) through (h) is referred to herein as the "Trust Property").
It is the intention of the Depositor that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables and
other Trust Property from the Depositor to the Trust and the beneficial interest
in and title to the Receivables and such other Trust Property shall not be part
of the Depositor's estate in the event of the filing of a bankruptcy petition by
or against the Depositor under any bankruptcy law. In the event that,
notwithstanding the intent of the Depositor, the transfer and assignment
contemplated hereby is held not to be a sale, this Agreement shall constitute a
grant of a security interest to the Owner Trustee in the Trust Property for the
benefit of the Securityholders.
ARTICLE III.
The Receivables
SECTION 3.1. Representations and Warranties of Depositor and Sponsor.
The Sponsor and the Depositor, jointly and severally, make the following
representations and warranties as to the Receivables on which the Issuer is
deemed to have relied in acquiring the Receivables. Such representations and
warranties speak as of the execution and delivery of the Agreement, but shall
survive the sale, transfer and assignment of the Receivables to the Issuer and
the pledge thereof to the Trustee pursuant to the Indenture.
(a) Title. It is the intention of the Depositor that the transfer
and assignment contemplated by the Loan Contribution Agreement constitute a
contribution of the Related Receivables from the Originators to the Depositor
pursuant to the Loan Contribution Agreement and that the beneficial interest in
and title to such Related Receivables not be part of the debtor's
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estate in the event of the filing of a petition for bankruptcy or insolvency by
or against such Originator. No Related Receivable has been sold, transferred,
contributed, assigned or pledged by such Originator to any Person other than the
Depositor pursuant to the Loan Contribution Agreement. Immediately prior to the
transfer and assignment contemplated by the Loan Contribution Agreement, such
Originator had good and marketable title to each Related Receivable conveyed by
it to the Depositor, free and clear of all Liens and, immediately upon the
transfer thereof, the Depositor shall have good and marketable title to each
such Related Receivable, free and clear of all Liens; and the transfer of the
Related Receivables to the Depositor has been perfected under the UCC. It is
the intention of the Depositor that the transfer and assignment herein
contemplated constitute a sale of the Receivables from the Depositor to the
Issuer and that the beneficial interest in and title to such Receivables not be
part of the debtor's estate in the event of the filing of a petition for
receivership by or against the Depositor. No Receivable has been sold,
transferred, assigned or pledged by the Depositor to any Person other than the
Issuer. Immediately prior to the transfer and assignment herein contemplated,
the Depositor had good and marketable title to each Receivable, free and clear
of all Liens and, immediately upon the transfer thereof, the Issuer shall have
good and marketable title to each such Receivable, free and clear of all Liens;
and the transfer of the Receivables to the Issuer has been perfected under the
UCC.
(b) All Filings Made. All filings (including UCC filings) necessary
in any jurisdiction to give the Depositor a first priority perfected security
interest in the Receivables, to give the Issuer a first priority perfected
ownership interest in the Receivables, and to give the Trustee a first priority
perfected security interest therein, shall have been presented to the Trustee
for filing in the appropriate filing offices. Upon such filing by the Servicer,
the Trustee will have a first priority perfected security interest in the Trust
Property.
(c) Characteristics of Receivables. Each Receivable (A) has been
either originated by a Dealer in the regular course of such Dealer's business
and purchased from such Dealer by an Originator in the ordinary course of the
Originator's business or otherwise originated by the Originator in the ordinary
course of the Originator's business, and each Obligor was approved in accordance
with the Related Originator's standard underwriting procedures in effect at the
time such Receivable was originated or purchased, (B) was conveyed by the
Related Originator to the Depositor, (C) has created or shall create a valid,
subsisting and enforceable first priority security interest in favor of the
Related Originator in the Related Financed Vehicle, which security interest has
been assigned by the Related Originator to the Depositor, which is assignable by
the Depositor to the Issuer and by the Issuer to the Trustee, (D) contains
customary and enforceable provisions under the laws of the State governing such
Receivable such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the security; and (E)
provides for level monthly payments that fully amortizes the Amount Financed by
maturity (except for the last payment, which may be different from the level
payment and except, with respect to a Balloon Loan, to the extent of the Balloon
Payment).
(d) Schedule of Receivables. The information set forth in Schedule A
to this Agreement is true and correct in all material respects as of the opening
of business on the Cutoff
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Date and no selection procedures believed by the Depositor to be adverse to the
Noteholders or the Certificateholders were utilized in selecting the
Receivables. The Computer Tape regarding the Receivables is true and correct in
all material respects as of the Cutoff Date.
(e) Compliance With Law. Each Receivable, the sale of the Financed
Vehicle and the sale of any physical damage and credit life and credit accident
and health insurance and any extended service contracts complied in all material
respects at the time it was originated or made and at the Closing Date (after
giving effect to the transactions contemplated by the Basic Documents) complies
in all material respects with all requirements of applicable federal, state and
local laws and regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldier's and Sailor's Civil Relief Act of 1940, state
adaptations of the National Consumer Act and the Uniform Consumer Credit Code,
and other consumer credit laws and equal credit opportunity and disclosure laws.
(f) Binding Obligation. Each Receivable represents the legal, valid
and binding payment obligation in writing of the Obligor thereunder, enforceable
by the holder thereof in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws now or hereafter in effect related
to or affecting creditors' rights generally and subject to general principles of
equity (whether applied in a proceeding at law or in equity) and all parties to
such Receivable had full legal capacity to execute and deliver such Receivable
and all other documents related thereto and to grant the security interest
purported to be granted thereby.
(g) No Government Obligor. None of the Receivables is due from the
United States of America or any state or from any agency, department or
instrumentality of the United States of America or any state.
(h) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment, and transfer thereof under the Agreement, (i) each Receivable
shall be secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of the Related Originator as secured party or (ii)
application has been made with the appropriate governmental authority for a
valid perfected first priority security interest in the Financed Vehicle in
favor of the Related Originator, and such security interest is or shall be prior
to all other Liens upon and security interests in such Financed Vehicle which
now exist or may hereafter arise or be created (except, as to priority, for any
tax liens or mechanics' liens which may arise after the Closing Date).
(i) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from the
Lien granted by the related Receivable in whole or in part unless another
vehicle has been substituted as collateral securing the Receivable without any
other modification to such Receivable.
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(j) No Waiver. No provision of a Receivable has been modified or
waived except as reflected in the Receivable File relating to such Receivable.
(k) No Amendments. No Receivable has been amended, except as
permitted pursuant to Section 4.2.
(l) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable. The
operation of the terms of any Receivable or the exercise of any right thereunder
will not render such Receivable unenforceable in whole or in part or subject to
any such right of rescission, setoff, counterclaim, or defense.
(m) No Liens. As of the Cutoff Date, there are no Liens or claims,
including Liens for work, labor, materials or unpaid state or federal taxes
relating to any Financed Vehicle securing the related Receivable, that are or
may be prior to or equal to the Lien granted by such Receivable.
(n) No Default. Except for payment delinquencies continuing for a
period of not more than thirty days as of the Cutoff Date and, except as
permitted in this paragraph, no default, breach, violation or event (in any such
case) permitting acceleration under the terms of any Receivable has occurred;
and no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event (in any such case) permitting
acceleration under the terms of any Receivable has arisen; and the Depositor has
not waived and shall not waive any of the foregoing.
(o) Maturity of Receivables. Each Receivable has an original
maturity of not more than 84 months; the weighted average original maturity of
the Receivables is 63.09 months as of the Cutoff Date; the remaining term of
each Receivable is 84 months or less as of the Cutoff Date; the weighted average
remaining term of the Receivables is 59.11 months as of the Cutoff Date; and the
latest scheduled maturity of any Receivable shall be no later than the Final
Scheduled Maturity Date.
(p) No Bankruptcies. No Obligor on any Receivable was noted in the
related Receivable File as having filed for bankruptcy in a proceeding which
remained undischarged as of the Cutoff Date.
(q) No Repossessions. As of the Cutoff Date, no Financed Vehicle
securing any Receivable is in repossession status.
(r) Chattel Paper. Each Receivable constitutes "chattel paper" as
defined in the UCC.
(s) Contract Rate. The weighted average Contract Rate of the
Receivables as of the Cutoff Date is approximately 12.03%.
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(t) Principal Balance. Each Receivable has an outstanding principal
balance as of the Cutoff Date of not less than $1,000 or more than $67,000. The
average principal balance of the Receivables as of the Cutoff Date is
$14,185.65. The aggregate principal balance of the Receivables as of the Cutoff
Date is $602,124,240.78.
(u) Financing. Approximately 31.55% of the aggregate principal
balance of the Receivables, constituting approximately 25.64% of the number of
Receivables, as of the Cutoff Date, represents financing of new vehicles; the
remainder of the Receivables represents financing of used vehicles.
Approximately 11.85% of the aggregate principal balance of the Receivables,
constituting approximately 9.21% of the number of Receivables, as of the Cutoff
Date, represents financing of Balloon Loans. Approximately 69.29% of the
aggregate Principal Balance of the Receivables, constituting approximately
69.94% of the number of Receivables, as of the Cutoff Date, represents financing
of Simple Interest Receivables; the remainder of the Receivables represents
financing of Actuarial Receivables.
(v) Paid-Ahead. Not more than 1.0% of the aggregate Principal
Balance of the Receivable is paid-ahead more than six months.
(w) Insurance; Other. Each Related Originator, in accordance with
its customary procedures, has confirmed (A) that each Obligor has obtained
insurance covering the Financed Vehicle as of the date of execution of the
Related Receivable insuring against loss and damage due to fire, theft,
collision and other risks generally covered by comprehensive and collision
coverage and that each Receivable requires the Obligor to maintain such
insurance naming the applicable Originator and its successors and assigns as a
loss payee, (B) each Receivable that finances the cost of premiums for credit
life and credit accident and health insurance is covered by an insurance policy
or certificate of insurance naming the applicable Originator as loss payee
(lienholder) under each such insurance policy and certificate of insurance and
(C) as to each Receivable that finances the cost of an extended service
contract, the respective Financed Vehicle which secures the Receivable is
covered by an extended service contract.
(x) Lawful Assignment. No Receivable has been originated in, or as
of the Closing Date is subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Receivable or this Agreement or the pledge
of such Receivable to the Trustee under the Indenture (i) is unlawful, void,
voidable or unenforceable in accordance with its terms or (ii) would render such
Receivable void, voidable or unenforceable in accordance with its terms. None
of any of the Originators nor the Depositor has entered into any agreement with
any account debtor that prohibits, restricts or conditions the assignment of all
or any portion of the Receivable.
(y) No Insurance Premiums. As of the Cutoff Date, no portion of the
principal balance of any Receivable included amounts attributable to the payment
of any physical damage or theft insurance premium.
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(z) One Original. There is only one manually executed original copy
of each Receivable.
(aa) Origination of Receivables. Based on the billing address of the
Obligors and the principal balance of Receivables as of the Cutoff Date,
approximately 42.76% of the Receivables were originated by Dealers in Florida,
each Obligor has been approved by the Originator based on the Originator's
standard underwriting procedures as in effect at the time the related Receivable
was entered into. Based on the billing address of the Obligors and the
principal balance of the Receivables as of the Cutoff Date, not more than 10% of
the Receivables were originated in any one state other than Florida.
(bb) Receivable Files. The Receivable Files are kept at the locations
listed in Schedule B.
(cc) Computer Records. As of the Closing Date, the accounting and
computer records relating to the Receivables of the Depositor and each
Originator have been marked to show the absolute ownership by the Owner Trustee
on behalf of the Trust of the Receivables.
SECTION 3.2. Repurchase upon Breach. The Sponsor, the Depositor, the
Servicer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement and the Trustee promptly, in writing, upon its
discovery of any breach of the Depositor's and the Sponsor's representations and
warranties made pursuant to Section 3.1. Unless any such breach shall have been
cured by the last day of the first Collection Period following the discovery
thereof by the Owner Trustee or receipt by the Owner Trustee of written notice
from the Sponsor, the Depositor or the Servicer of such breach, the Sponsor and
the Depositor shall be jointly and severally obligated to repurchase any
Receivable in which the interests of the Noteholders or Certificateholders are
materially and adversely affected by any such breach as of the last day of such
Collection Period. In consideration of and simultaneously with the repurchase
of the Receivable, the Sponsor and/or the Depositor shall remit to the
Collection Account the Purchase Amount in the manner specified in Section 5.4
and the Issuer shall execute such assignments and other documents reasonably
requested by the Sponsor and/or the Depositor in order to effect such
repurchase. The sole remedy of the Issuer, the Owner Trustee, the Trustee, the
Noteholders or the Certificateholders with respect to a breach of
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be to require the Sponsor and/or the Depositor
to repurchase Receivables pursuant to this Section, subject to the conditions
contained herein. Neither the Owner Trustee nor the Trustee shall have a duty
to conduct any affirmative investigation as to the occurrence of any conditions
requiring the repurchase of any Receivable pursuant to this Section.
SECTION 3.3. Custody of Receivable Files. To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Issuer and
the Trustee hereby revocably appoints the Servicer, and the Servicer hereby
accepts such appointment, to act as the agent of the Issuer and the Trustee as
custodian of the following documents or instruments which are hereby
constructively delivered to the Trustee, as pledgee of the Issuer with respect
to each Receivable:
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(a) the original of the Receivable;
(b) a record of the information supplied by the Obligor in the
original credit application;
(c) the original certificate of title or such documents that the
Servicer shall keep on file, in accordance with its customary procedures,
evidencing the security interest of the Depositor in the Financed Vehicle (it
being understood that the original certificates of title generally are not
delivered to the Servicer for 90 days but that promptly upon delivery they
shall be delivered to the Servicer as custodian hereunder); and
(d) any and all other documents that the Servicer shall keep on
file, in accordance with its customary procedures, relating to a Receivable,
an Obligor or a Financed Vehicle.
SECTION 3.4. Duties of Servicer as Custodian. (a) Safekeeping. The
Servicer shall hold the Receivable Files on behalf of the Issuer and the Trustee
and maintain such accurate and complete accounts, records and computer systems
pertaining to each Receivable File as shall enable the Issuer to comply with
this Agreement. In performing its duties as custodian the Servicer shall act
with reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to the receivable files relating to all comparable
automotive receivables that the Servicer services for itself or others. The
Servicer shall conduct, or cause to be conducted, periodic audits of the
Receivable Files held by it under this Agreement and of the related accounts,
records and computer systems, in such a manner as shall enable the Issuer or the
Trustee to verify the accuracy of the Servicer's record keeping. The Servicer
shall promptly report to the Issuer and the Trustee any failure on its part to
hold the Receivable Files and maintain its accounts, records and computer
systems as herein provided and promptly take appropriate action to remedy any
such failure.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B
to this Agreement or at such other office as shall be specified to the Issuer
and the Trustee by written notice not later than 90 days after any change in
location. Upon reasonable prior notice, the Servicer shall make available to
the Issuer and the Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files and records and computer systems maintained by the Servicer at such
times during normal business hours as the Issuer or the Trustee shall
instruct.
(c) Release of Documents. Upon written instruction from the
Trustee, the Servicer shall release any Receivable File to the Trustee, the
Trustee's agent, or the Trustee's designee, as the case may be, at such place
or places as the Trustee may designate, as soon as practicable and upon the
release and delivery of any such document in accordance with the instructions
of the Trustee, the Servicer shall be released from any further liability and
responsibilities under this Section 3.4 with respect to such documents unless
and until such time as such document may be returned to the Servicer.
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SECTION 3.5. Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trust Officer of the
Trustee.
SECTION 3.6. Custodian's Indemnification. The Servicer as custodian
shall indemnify and hold harmless the Trust, the Owner Trustee and the Trustee
and each of their officers, directors, employees and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses (including reasonable attorneys' fees and expenses) that may be imposed
on, incurred by or asserted against the Trust, the Owner Trustee or the Trustee
or any of their officers, directors, employees and agents as the result of any
improper act or omission in any way relating to the maintenance and custody by
the Servicer as custodian of the Receivable Files where the final determination
that any such improper act or omission by the Servicer resulted in such
liability, obligation, loss, damage, payment, cost or expense is established by
a court of law, by an arbitrator or by way of settlement agreed to by the
Servicer; provided, however, that the Servicer shall not be liable to the Trust
or the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Owner Trustee and the
Servicer shall not be liable to the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Trustee.
This provision shall not be considered to limit the Servicer's or any other
party's rights, obligations, liabilities, claims or defenses which arise as a
matter of law or pursuant to any other provision of this Agreement.
SECTION 3.7. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and
shall continue in full force and effect until terminated pursuant to this
Section. If BDFS shall resign as Servicer in accordance with the provisions
of this Agreement or if all of the rights and obligations of any Servicer
shall have been terminated under Section 8.1, the appointment of such
Servicer as custodian shall be terminated by the Trustee or by the Holders of
Notes evidencing not less than 25% of the Outstanding Amount of the Notes or
such Holders may terminate the rights and obligations of the Servicer under
Section 8.1. The Trustee or, with the consent of the Trustee, the Owner
Trustee, may terminate the Servicer's appointment as custodian, with cause,
at any time upon written notification to the Servicer, and without cause upon
30 days' prior written notification to the Servicer and the Rating Agencies.
As soon as practicable after any termination of such appointment, the
Servicer shall deliver the Receivable Files to the Trustee or the Trustee's
agent at such place or places as the Trustee may reasonably designate in
writing. If the Servicer shall be terminated as custodian hereunder for any
reason but shall continue to serve as Servicer, the Trustee shall, or shall
cause its agent to, make the Receivable Files available to the Servicer
during normal business hours upon reasonable notice so as to permit the
Servicer to perform its obligations as Servicer hereunder.
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ARTICLE IV.
Administration and Servicing of Receivables
SECTION 4.1. Duties of Servicer. The Servicer, as agent for the
Issuer (to the extent provided herein), shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable automotive receivables that it services
for itself or others. The Servicer's duties shall include collection and
posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending payment coupons or periodic
statements or invoices to Obligors, reporting any tax information to Obligors,
accounting for collections and furnishing monthly and annual statements to the
Owner Trustee and the Trustee with respect to distributions and making Advances
pursuant to Section 5.7. Subject to the provisions of Section 4.2, the Servicer
shall follow its customary standards, policies and procedures in performing its
duties as Servicer. Without limiting the generality of the foregoing, the
Servicer is authorized and empowered to execute and deliver, on behalf of
itself, the Issuer, the Owner Trustee, the Trustee, the Certificateholders and
the Noteholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Issuer (in the case of a Receivable other than a
Purchased Receivable) shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in
any enforcement suit or legal proceeding it shall be held that the Servicer may
not enforce a Receivable on the ground that it shall not be a real party in
interest or a holder entitled to enforce such Receivable, the Owner Trustee
shall, at the Servicer's expense and direction, take steps to enforce such
Receivable, including bringing suit in its name or the name of the Trustee, the
Certificateholders or the Noteholders. The Owner Trustee shall upon the written
request of the Servicer furnish the Servicer with any powers of attorney and
other documents reasonably necessary or appropriate (as certified to the Owner
Trustee by the Servicer) to enable the Servicer to carry out its servicing and
administrative duties hereunder.
SECTION 4.2. Collection and Allocation of Receivable Payments. (a)
The Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Receivables as and when the same shall
become due and shall follow such collection procedures as it follows with
respect to all comparable automotive receivables that it services for itself or
others. The Servicer shall allocate collections between principal and interest
in accordance with the customary servicing procedures it follows with respect to
all comparable automotive receivables that it services for itself or others.
(b) The Servicer may not grant extensions or modify the original due
dates of a Receivable; provided, however, that the Servicer may (i) modify the
original due date of a Receivable by authorizing an Obligor to skip up to two
scheduled principal and interest payments in any rolling 12-month period and
extend the final maturity date with respect to any
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such Receivable by a term equal to one month for each payment skipped,
(ii) modify the original due date and terms of a Receivable by re-amortizing the
Receivable and extending the final maturity date once during the term of a
Receivable, and (iii) grant extensions or modify the original due dates of a
Receivable with respect to a Receivable for which a court of appropriate
jurisdiction in a bankruptcy or insolvency proceeding shall have issued an order
reducing the amount owed on such Receivable or otherwise modifying or
restructuring the scheduled payments or other terms on such Receivable;
provided, however, that the Servicer may not extend the date for final payment
by the Obligor of any Receivable beyond the last day of the Collection Period
preceding the Class B Note Final Scheduled Distribution Date. The Servicer may
in its discretion waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Receivable. The Servicer shall
not voluntarily agree to any reduction of (i) the original interest rate, (ii)
the amount of any Scheduled Payment on an Actuarial Receivable or the original
regular scheduled payment on a Simple Interest Receivable, or (iii) the
Principal Balance of any Receivable.
SECTION 4.3. Realization upon Receivables. On behalf of the Issuer,
the Servicer shall use all reasonable efforts, consistent with its customary
servicing procedures, to repossess or otherwise convert the ownership of the
Financed Vehicle securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. From time to time, as
appropriate for servicing or foreclosing upon any Receivable, the Owner Trustee
shall, upon written request of the Servicer, execute such documents as shall be
necessary to prosecute any such proceedings. The Servicer shall follow such
customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of automotive receivables, which may include
reasonable efforts to realize proceeds from Receivables repurchased by a Dealer,
pursuant to a Dealer Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement or a default by an Obligor resulting in
the repossession of the Financed Vehicle under such Dealer Agreement. The
foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its reasonable discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an amount greater than
the amount of such expenses.
SECTION 4.4. Physical Damage Insurance; Other Insurance. (a) The
Servicer shall, in accordance with its customary servicing procedures, verify
(i) that each Obligor shall have obtained insurance covering the Financed
Vehicle, as of the date of the execution of the Receivable, insuring against
loss and damage due to fire, theft, collision and other risks generally covered
by comprehensive and collision coverage and that each Receivable requires the
Obligor to maintain such physical loss and damage insurance naming the Related
Originator and its successors and assigns as a loss payee, (ii) that each
Receivable that finances the cost of premiums for credit life and credit
accident and health insurance is covered by an insurance policy or certificate
naming the Originator as policyholder (creditor) and (iii) as to each Receivable
that finances the cost of an extended service contract, the respective Financed
Vehicle which secures the Receivable is covered by an extended service contract.
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(b) To the extent applicable, the Servicer shall not take any action
which would result in noncoverage under any of the insurance policies referred
to in Section 4.4(a) which, but for the actions of the Servicer, would have been
covered thereunder. The Servicer, on behalf of the Trustee shall take such
reasonable action as shall be necessary to permit recovery under any of the
foregoing insurance policies. Any amounts collected by the Servicer under any
of the foregoing insurance policies, shall be deposited in the Collection
Account pursuant to Section 5.2. The parties hereto acknowledge that the
Servicer shall not be required to force place any insurance coverage referred to
in Section 4.4(a)(i) above, or any other insurance coverage.
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles.
The Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of (i) the security interest
created by each Receivable in the related Financed Vehicle and (ii) the interest
of the Trust in the Receivables created by this Agreement, including but not
limited to obtaining the execution by the Obligors and the recording,
registering, filing, re-recording, re-registering and refiling of all security
agreements, financing statements and continuation statements or instruments as
are necessary to maintain the security interest granted by Obligors under the
respective Receivables, the Originators under the Loan Contribution Agreement,
the Depositor hereunder and the Issuer under the Indenture. The Servicer is
hereby authorized to take such steps as are necessary to re-perfect such
security interest on behalf of the Issuer and the Trustee in the event of the
relocation of a Financed Vehicle or for any other reason.
SECTION 4.6. Covenants of Servicer. The Servicer shall not release
the Financed Vehicle securing any Receivable from the security interest granted
by such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession or except as may be required by an
insurer in order to receive proceeds from insurance covering such Financed
Vehicle, nor shall the Servicer impair the rights of the Issuer, the Trustee,
the Certificateholders or the Noteholders in such Receivables (it being
understood that no action of the Servicer taken in compliance with the terms of
this Agreement shall be deemed to impair such rights), nor shall the Servicer
increase the number of scheduled payments due under a Receivable.
Notwithstanding the foregoing, the Servicer may, as described in Section 4.2(b),
grant extensions or modify the original due dates of a Receivable or make such
other changes with respect to a Receivable for which a court of appropriate
jurisdiction in a bankruptcy or insolvency proceeding shall have issued an order
reducing the amount owed on such Receivable or otherwise modifying or
restructuring the scheduled payments on such Receivable; provided, however, that
the Servicer may not extend the date for final payment by the Obligor of any
Receivable beyond the last day of the Collection Period preceding the Class B
Note Final Scheduled Distribution Date.
SECTION 4.7. Purchase of Receivables upon Breach. The Servicer or
the Owner Trustee shall inform the other party and the Trustee and the Depositor
promptly, in writing, upon the discovery of any breach pursuant to
Section 4.2(b), 4.5 or 4.6. Unless the breach shall have been cured by the last
day of the second Collection Period following such discovery thereof by the
Owner Trustee or the receipt by the Owner Trustee of notice of such breach, the
Servicer
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shall be obligated to purchase any Receivable in which the interests of the
Noteholders or the Certificateholders are materially and adversely affected by
such breach as of the last day of such second Collection Period (or, at the
Servicer's option, the last day of the first Collection Period following the
discovery). In consideration of the purchase of any such Receivable pursuant to
the preceding sentence, the Servicer shall remit the Purchase Amount in the
manner specified in Section 5.4. The sole remedy of the Issuer, the Owner
Trustee, the Trustee, the Certificateholders or the Noteholders with respect to
a breach of Section 4.2(b), 4.5 or 4.6 shall be to require the Servicer to
purchase Receivables pursuant to this Section. Neither the Trustee nor the
Owner Trustee shall have any duty to conduct any affirmative investigation as to
the occurrence of any condition requiring the purchase of any Receivable
pursuant to this Section.
SECTION 4.8. Servicing Fee. The servicing fee for each Distribution
Date shall equal the product of (i) one-twelfth, (ii) the Servicing Fee Rate and
(iii) the Pool Balance as of the first day of the related Collection Period (the
"Servicing Fee"). In addition, the "Servicing Fee" described in (a) and (b)
above shall include late fees, prepayment charges and other similar charges
allowed by applicable law with respect to Receivables collected (from whatever
source) on the Receivables.
SECTION 4.9. Servicer's Certificate. Not later than 11:00 a.m. (New
York time) on each Determination Date, the Servicer shall deliver to the Owner
Trustee, the Trustee and the Depositor, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information necessary to make the
distributions pursuant to Sections 5.5 and 5.6 (including, if required,
withdrawals from or deposits to the Payahead Account and Advances by the
Servicer pursuant to Section 5.7) for the Collection Period preceding the date
of such Servicer's Certificate. Receivables to be purchased by the Servicer or
to be repurchased by the Depositor or the Sponsor shall be identified by the
Servicer by account number with respect to such Receivable (as specified in
Schedule A).
SECTION 4.10. Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Owner Trustee and the Trustee, on or
before April 30 of each year beginning April 30, 1998, an Officers' Certificate,
dated as of December 31 of the preceding year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month period (or, in the case
of the first such report, during the period from the Closing Date to December
31, 1997) and of its performance under this Agreement has been made under such
officers' supervision and (ii) to the best of such officers' knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year (or, in the case of the first such certificate, such
shorter period) or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status thereof. The Trustee shall send a copy of such certificate and the
report referred to in Section 4.11 to the Rating Agencies. A copy of such
certificate and the report referred to in Section 4.11 may be obtained by any
Certificateholder by a request in writing to the Owner Trustee addressed to the
Corporate Trust Office (as defined in the Trust Agreement) or by any Noteholder
by a request in writing to the Trustee addressed to the Corporate Trust Office.
Upon
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the telephone request of the Owner Trustee, the Trustee will promptly furnish
the Owner Trustee a list of Noteholders as of the date specified by the Owner
Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officers' Certificate of any event which with the giving of notice or lapse of
time, or both, would become a Servicer Default under Section 8.1(a) or (b).
SECTION 4.11. Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of independent certified public accountants,
which may also render other services to the Servicer or the Depositor, to
deliver to the Depositor, the Owner Trustee and the Trustee on or before April
30 of each year as of December 31 of the preceding fiscal year, beginning April
30, 1998, (1) a report addressed to the Board of Directors of the Servicer, to
the effect that such firm has examined the financial statements of the Servicer
and issued its report and that such examination was made in accordance with
generally accepted auditing standards (except as otherwise noted therein), and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances; and
(2) a report on description of lease and loan servicing operations and tests of
operating effectiveness in form and substance as is currently prepared on an
annual basis with respect to Servicer. The Servicer shall also concurrently
cause the accountants to deliver a report addressed to the Servicer, the Trustee
and the Owner Trustee to the effect that (1) a review in accordance with agreed
upon procedures was made of three randomly selected Servicer Certificates; (2)
except as disclosed in the report, no exceptions or errors in the Servicer
Certificates were found; and (3) the delinquencies and loss information,
relating to the Receivables contained in the Servicer Certificates were found to
be accurate.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders and
Noteholders access to the Receivable Files in such cases where the
Certificateholders or the Noteholders shall be required by applicable statutes
or regulations to review such documentation as demonstrated by evidence
satisfactory to the Servicer in its reasonable judgment. Access shall be
afforded without charge, but only upon reasonable request (not less than
seventy-two hours) and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section shall affect the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section.
SECTION 4.13. Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees and
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disbursements of independent accountants, taxes imposed on the Servicer and
expenses incurred in connection with distributions and reports to
Certificateholders and Noteholders.
SECTION 4.14. Appointment of Subservicer. The Servicer may at any
time appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, however, that the Rating Agency Condition shall
have been satisfied in connection therewith; provided further that the Servicer
shall remain obligated and be liable to the Issuer, the Owner Trustee, the
Trustee, the Certificateholders and the Noteholders for the servicing and
administering of the Receivables in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the appointment
of such subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Receivables. The fees and expenses of the subservicer shall be as agreed
between the Servicer and its subservicer from time to time and none of the
Issuer, the Owner Trustee, the Trustee, the Certificateholders or the
Noteholders shall have any responsibility therefor.
ARTICLE V.
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts. (a) (i) The Servicer,
for the benefit of the Noteholders and the Certificateholders, shall establish
and maintain in the name of the Trustee an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and the
Certificateholders. The Collection Account shall be maintained with the Trustee
as long as such account is an Eligible Deposit Account.
(ii) The Servicer, for the benefit of the Noteholders, shall establish
and maintain in the name of the Trustee an Eligible Deposit Account (the
"Note Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Noteholders.
The Note Distribution Account shall be maintained with the Trustee as long
as such account is an Eligible Deposit Account.
(iii) The Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the Trustee
an Eligible Deposit Account (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders. The Reserve Account
shall be maintained with the Trustee as long as such account is an Eligible
Deposit Account.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Payahead Account and the Reserve Account (collectively, the "Trust
Accounts")
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shall be invested by the Trustee (or any custodian with respect to funds on
deposit in any such account) in Eligible Investments selected in writing by the
Servicer (pursuant to standing instructions delivered to a Trust Officer of the
Trustee and a Trust Officer of the Owner Trustee or other written notice so
delivered); provided, however, it is understood and agreed that neither the
Trustee nor the Owner Trustee shall be liable for any loss arising from such
investment in Eligible Investments. All such Eligible Investments shall be held
by or on behalf of the Trustee or the Owner Trustee, as applicable, for the
benefit of the Noteholders or the Certificateholders, as applicable; on each
Distribution Date all interest and other investment income (net of losses and
investment expenses) on funds on deposit therein shall be deposited into the
Collection Account and shall be deemed to constitute a portion of the Interest
Distribution Amount. Other than as permitted by the Rating Agencies, funds on
deposit in the Collection Account, the Note Distribution Account, the Payahead
Account and the Reserve Account shall be invested in Eligible Investments that
will mature so that such funds will be available at the close of business on the
Transfer Date preceding the following Distribution Date. Funds deposited in a
Trust Account on a Transfer Date which immediately precedes a Distribution Date
upon the maturity of any Eligible Investments are not required to be invested
overnight.
(c) (i) The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Trust Accounts and in all
proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Owner Trust Estate.
Except as otherwise provided herein, the Trust Accounts shall be under the
sole dominion and control of the Trustee for the benefit of the Noteholders
and the Certificateholders, or the Noteholders, as the case may be. If, at
any time, any of the Trust Accounts ceases to be an Eligible Deposit
Account, the Trustee (or the Servicer on its behalf) or the Owner Trustee,
as applicable, shall within 10 Business Days (or such longer period as to
which each Rating Agency may consent) establish a new Trust Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Trust Account. In connection with the foregoing, the Servicer
agrees that, in the event that any of the Trust Accounts are not accounts
with the Trustee, the Servicer shall notify the Trustee or the Owner
Trustee, as applicable, in writing promptly upon any of such Trust Accounts
ceasing to be an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Trustee, agrees,
by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in Eligible Deposit Accounts subject to the
penultimate sentence of Section 5.1(c)(i); and, except as otherwise
provided herein, each such Eligible Deposit Account shall be subject
to the exclusive custody and control of the Trustee, and the Trustee,
shall have sole signature authority with respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be delivered to the Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the
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Trustee or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for the Trustee;
(C) any Trust Account Property that is a book- entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the Trustee,
pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in such
paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trustee in accordance with
paragraph (c) of the definition of "Delivery" and shall be maintained
by the Trustee, pending maturity or disposition, through continued
registration of the Trustee's (or its nominee's) ownership of such
security.
(iii) The Servicer shall have the power, revocable by the Trustee
or by the Owner Trustee with the consent of the Trustee, to instruct the
Trustee to make withdrawals and payments from the Trust Accounts for the
purpose of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Trustee to carry out its
duties under the Indenture.
(d) (i) The Servicer shall establish and maintain with the Trustee an
Eligible Deposit Account (the "Payahead Account").
(ii) The Servicer shall on or prior to each Distribution Date (and
prior to deposits to the Note Distribution Account) transfer from the
Collection Account to the Payahead Account all Payaheads as described in
Section 5.3 received by the Servicer during the Collection Period.
Notwithstanding the foregoing and the first sentence of Section 5.2, for so
long as the Servicer is permitted to make monthly remittances to the
Collection Account pursuant to Section 5.2, Payaheads need not be remitted
to and deposited in the Payahead Account but instead may be remitted to and
held by the Servicer. So long as such condition is met, the Servicer shall
not be required to segregate or otherwise hold separate any Payaheads
remitted to the Servicer as aforesaid but shall be required to remit
Payaheads to the Collection Account in accordance with Section 5.5(a).
SECTION 5.2. Collections. The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all collected funds
received from payments by or on behalf of the Obligors with respect to the
Receivables, and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as (i) the
Servicer is BDFS, (ii) no Servicer Default shall have occurred and be
continuing, (iii) if the Servicer does not have a short term debt rating or
deposit rating as applicable, of at least A-1
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from Standard & Poor's and P-1 from Moody's, a guaranty, letter of credit,
surety bond or other similar instrument is issued covering the amounts described
in clauses (a), (b), (d) and (e) of the definition of Available Principal and
amounts described in clauses (a), (b), (d) and (e) of the definition of Interest
Distribution Amount, which is acceptable to the Rating Agencies and issued by an
entity, which has a short-term debt or deposit rating, as applicable, of at
least A-1 from Standard & Poor's and P-1 from Moody's; and (iv) the Rating
Agency Condition shall have been satisfied (and any conditions or limitations
imposed by the Rating Agencies in connection therewith are complied with), the
Servicer shall remit such collections to the Collection Account on the related
Transfer Date. For purposes of this Article V the phrase "payments by or on
behalf of Obligors" shall mean payments made with respect to the Receivables by
Persons other than the Servicer, the Sponsor or the Depositor. The Rating
Agency Condition with respect to this Section 5.4 and the Closing Date shall be
deemed to be satisfied upon the issuance to the Depositor of the rating letters
on the Closing Date.
SECTION 5.3. Application of Collections. (a) All collections for the
Collection Period shall be applied by the Servicer as follows:
With respect to each Actuarial Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor shall be applied first to
reduce Outstanding Advances as described in Section 5.7(a). Next, any excess
shall be applied, in the case of Actuarial Receivables, to the Scheduled Payment
and, shall be applied in the case of Simple Interest Receivables, to interest
and principal in accordance with the Simple Interest Method. With respect to
Actuarial Receivables, any remaining excess shall be added to the Payahead
Balance, and shall be applied to prepay the Actuarial Receivable, but only if
the sum of such excess and the previous Payahead Balance shall be sufficient to
prepay the Actuarial Receivable in full. Otherwise, any such remaining excess
payments shall constitute a Payahead and shall increase the Payahead Balance.
(b) All Liquidation Proceeds shall be applied to the related
Receivable in accordance with the Servicer's customary servicing procedures.
SECTION 5.4. Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Advances pursuant to Section 5.7. The
Servicer, the Sponsor and the Depositor shall deposit or cause to be deposited
in the Collection Account the aggregate Purchase Amount with respect to any
Purchased Receivables and the Servicer shall deposit therein any amounts to be
paid under Section 9.1. The Servicer will deposit or cause to be deposited the
aggregate Purchase Amount with respect to Purchased Receivables within two
Business Days after such obligations become due, unless the Servicer shall not
be required to make deposits within two Business Days of receipt pursuant to
Section 5.2 (in which case such deposit will be made by the related Transfer
Date). All such other deposits shall be made on the Transfer Date following the
end of the related Collection Period.
SECTION 5.5. Distributions. (a) On each Distribution Date, the
Trustee shall cause to be transferred from the Payahead Account, or from the
Servicer in the event the
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provisions of Section 5.1(d)(ii) are applicable, (i) to the Collection Account,
in immediately available funds, the aggregate previous Payaheads to be applied
to Scheduled Payments on Actuarial Receivables for the related Collection Period
or prepayments for the related Collection Period, pursuant to Sections 5.3 and
5.7, in the amounts set forth in the Servicer's Certificate for such
Distribution Date and (ii) to the Depositor, in immediately available funds, the
investment earnings, net of losses on the Payaheads for the related Collection
Period. A single, net transfer may be made.
(b) On each Determination Date, the Servicer shall calculate all
amounts required to determine the amounts to be deposited from the Reserve
Account into the Collection Account and from the Collection Account into the
Note Distribution Account.
(c) On or before each Distribution Date, the Servicer shall instruct
the Trustee (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.9) to withdraw
from the Reserve Account and deposit in the Collection Account and the Trustee
shall so withdraw and deposit the Reserve Account Transfer Amount for such
Distribution Date.
(d) The Servicer shall instruct the Trustee (based on the information
contained in the Servicer's Certificate delivered on the related Determination
Date pursuant to Section 4.9) to make, and the Trustee shall make, a
distribution from the Collection Account to the Servicer by 11:00 a.m. (New York
time), amounts in respect of Outstanding Advances to the extent that the
Servicer is entitled to reimbursement in respect thereof in accordance with
Section 5.7. Subject to the last paragraph of this Section 5.5(d), no later than
each Distribution Date, the Servicer shall instruct the Trustee (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 4.9) to make, and the Trustee shall make,
the following deposits and distributions from the Collection Account for deposit
in the applicable Account by 10:00 a.m. (New York time), to the extent of the
Total Distribution Amount, in the following order of priority:
(i) to the Servicer, from the Total Distribution Amount, the Total
Servicing Fee;
(ii) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clause (i), the Class A
Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clause (i) and (ii), the Class B
Noteholders' Interest Distributable Amount;
(iv) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clauses (i) through (iii), the
Class A Noteholders' Principal Distributable Amount;
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(v) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clauses (i) through (iv), the
Class B Noteholders' Principal Distributable Amount; and
(vi) to the Trustee for deposit in the Reserve Account, from the
Total Distribution Amount, the amounts remaining after the application of
clauses (i) through (v) above; provided, however, that following the
occurrence of an Event of Default pursuant to Section 5.1(i), 5.1(ii),
5.1(iv) or 5.1(v) of the Indenture or an acceleration of the Notes
pursuant to Section 5.2 of the Indenture, amounts on deposit in the
Collection Account, and, in the case of an acceleration, amounts in the
Reserve Account, will be deposited in the Note Distribution Account and
applied to the Class A Notes to the extent necessary to pay accrued and
unpaid interest on the Class A Notes and then, to the extent funds are
available therefore, principal on the Class A Notes until the principal
balance of the Class A Notes has been reduced to zero, before any amounts
are deposited in the Note Distribution Account for application to the
Class B Notes. Following the payment in full of the Class A Notes,
amounts on deposit in the Collection Account will be deposited in the
Note Distribution Account to the extent necessary to pay accrued and
unpaid interest on the Class B and then, to the extent funds are
available therefore, principal on the Class B Notes until the principal
balance thereof has been reduced to zero.
In the event that the Collection Account is maintained with an
institution other than the Trustee, the Servicer shall instruct and cause such
institution to make all deposits and distributions pursuant to this
Section 5.5(d) on the related Transfer Date.
SECTION 5.6. Reserve Account. (a) On the Closing Date, the Depositor
shall deposit the Reserve Account Initial Deposit into the Reserve Account. In
no circumstances will the Depositor be required to deposit from its own funds
any amounts in the Reserve Account other than the Reserve Account Initial
Deposit to be made on the Closing Date.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to any and all deposits and withdrawals
therefrom on such Distribution Date) is greater than the Specified Reserve
Account Balance for such Distribution Date, the Servicer shall instruct the
Trustee to distribute, and the Trustee shall distribute, the amount of the
excess to the Paying Agent for distribution to the Certificateholders pursuant
to the Trust Agreement. Amounts properly distributed pursuant to Section 5.6(b)
shall be deemed released from the Trust and the security interest therein
granted to the Trustee and the Depositor shall in no event thereafter be
required to refund any such distributed amounts.
SECTION 5.7. Advances. (a) As of the close of business on the last
day of each Collection Period, if the payments by or on behalf of the Obligor on
an Actuarial Receivable (other than a Purchased Receivable) shall be less than
the Scheduled Payment, the Payahead Balance shall be applied by the Servicer to
the extent of the shortfall and such Payahead Balance shall be reduced
accordingly. Next, the Servicer shall advance any remaining shortfall (such
amount an "Advance"), to the extent that the Servicer, at its sole discretion,
shall determine that
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the Advance shall be recoverable from the Obligor, the Purchase Amount,
Liquidation Proceeds or proceeds of any other Actuarial Receivables. With
respect to each Actuarial Receivable, the Advance shall increase Outstanding
Advances. Outstanding Advances shall be reduced by subsequent payments by or on
behalf of the Obligor, collections of Liquidation Proceeds in respect of the
related Receivable or payments of the Purchase Amount of the related Receivable.
If the Servicer shall determine that an Outstanding Advance with
respect to any Actuarial Receivable shall not be recoverable as aforesaid, the
Servicer shall be reimbursed from any collections (including Liquidation
Proceeds) on other Actuarial Receivables in the Trust and Outstanding Advances
with respect to such Actuarial Receivables shall be reduced accordingly.
(b) The Servicer shall not make any advance with respect to interest
on or principal of Simple Interest Receivables.
SECTION 5.8. Statements to Certificateholders and Noteholders. On
each Determination Date, the Servicer shall provide to the Trustee (with a copy
to the Rating Agencies) for the Trustee to forward to each Noteholder of record,
to each Paying Agent, if any, and to the Owner Trustee for the Owner Trustee to
forward to each Certificateholder of record, a statement substantially in the
form of Exhibit A, setting forth at least the following information as to the
Notes and the Certificates to the extent applicable:
(i) the amount of such distribution allocable to principal of each
class of the Notes;
(ii) the amount of such distribution allocable to interest on or with
respect to each class of the Notes;
(iii) the Pool Balance as of the close of business on the last day of
the preceding Collection Period, after giving effect to payments allocated
to principal reported under (i) above;
(iv) the aggregate outstanding principal balance of each class of the
Notes and the Note Pool Factor for each such class after giving effect to
payments allocated to principal reported under (i) above;
(v) the amount of the Total Servicing Fee paid to the Servicer with
respect to the related Collection Period;
(vi) the amount of the aggregate Realized Losses for such Collection
Period;
(vii) cumulative Realized Losses from the Closing Date, including
Realized Losses for such Collection Period;
(viii) Recoveries, if any, for such Collection Period;
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(ix) aggregate outstanding principal balance of Receivables that are
currently in repossession status (excluding Liquidated Receivables);
(x) the Reserve Account Transfer Amount, if any, for such
Distribution Date, the Specified Reserve Account Balance for such
Distribution Date, the amount distributed to the Certificateholders from
the Reserve Account on such Distribution Date, and the balance of the
Reserve Account (if any) on such Distribution Date, after giving effect to
changes therein on such Distribution Date;
(xi) the Class A Noteholders' Interest Carryover Shortfall, the Class
B Noteholders' Interest Carryover Shortfall, the Class A Noteholders'
Principal Carryover Shortfall, and the Class B Noteholders' Principal
Carryover Shortfall;
(xii) the aggregate Purchase Amount paid by the Sponsor, the Depositor
or the Servicer with respect to the related Collection Period;
(xiii) the aggregate Payahead Balance;
(xiv) the amounts collected by the Servicer;
(xv) the amounts received by the Trust from the Servicer; and
(xvi) delinquency information relating to the Receivables which are
30, 60 and 90 days delinquent.
Each amount set forth pursuant to paragraph (i), (ii) or (xi) above
shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes.
SECTION 5.9. Net Deposits. As an administrative convenience, if the
Servicer is not required to remit collected funds within two Business Days of
receipt thereof, the Servicer will be permitted to make the deposit of such
funds, aggregate Advances and Purchase Amounts for or with respect to the
Collection Period net of distributions to be made to the Servicer with respect
to the Collection Period. Similarly, the Servicer may cause to be made a
single, net transfer, from the Collection Account to the Payahead Account, or
vice versa. The Servicer, however, will account to the Owner Trustee, the
Trustee, the Noteholders and the Certificateholders as if all deposits,
distributions and transfers were made individually.
SECTION 5.10. Reserved.
ARTICLE VI.
The Depositor
SECTION 6.1. Representations of Depositor. The Depositor makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and
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shall survive the sale of the Receivables to the Issuer and the pledge thereof
to the Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Depositor is duly organized and
validly existing as a corporation in good standing under the laws of the State
of Nevada with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power,
authority and legal right to acquire and own the Receivables.
(b) Due Qualification. The Depositor is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications, except where
the failure to so obtain would not have a material adverse impact either on the
Depositor, the transactions contemplated in the Basic Documents or the
Receivables.
(c) Power and Authority of the Depositor. The Depositor has the corporate
power and authority to execute and deliver this Agreement and to perform its
obligations under each of the Basic Documents to which the Depositor is a party;
the Depositor has full corporate power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer; the Depositor
has duly authorized such sale and assignment to the Issuer by all necessary
corporate action; and the execution, delivery and performance of each of the
Basic Documents to which the Depositor is a party has been duly authorized by
the Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement and each of the Basic Documents to
which the Depositor is a party constitute legal, valid and binding obligations
of the Depositor, enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity (whether
applied in a proceeding at law or in equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not result in any
breach of any of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under, the articles of association or
by-laws of the Depositor, or any material indenture, agreement or other
instrument to which the Depositor is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of its knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties.
(f) No Proceedings. There are no proceedings or investigations pending
against the Depositor or, to its best knowledge, threatened against the
Depositor, before any
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court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties: (i)
asserting the invalidity of this Agreement or any of the Basic Documents, the
Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions contemplated by
this Agreement or any of the Basic Documents, (iii) seeking any determination or
ruling that could reasonably be expected to have a material and adverse effect
on the performance by the Depositor of its obligations under, or the validity or
enforceability of the Basic Documents, the Notes or the Certificates or (iv)
seeking to affect adversely the Federal or state income tax or ERISA attributes
of the Issuer, the Notes or the Certificates.
(g) All Consents. All authorizations, licenses, consents, orders or
approvals of or registrations or declarations with any court, regulatory body,
administrative agency or other government instrumentality required to be
obtained, effected or given by the Depositor in connection with the execution
and delivery by the Depositor of this Agreement or any of the Basic Documents to
which it is a party and the performance by the Depositor of the transactions
contemplated by this Agreement or any of the Basic Documents to which it is a
party, have been duly obtained, effected or given and are in full force and
effect, except where failure to obtain the same would not have a material
adverse effect upon the rights of the Issuer, the Noteholders or the
Certificateholders.
(h) Indebtedness. All indebtedness of the Depositor will be extinguished
concurrently with the sale of the Trust Property by the Depositor to the Trust.
SECTION 6.2. Corporate Existence. (a) During the term of this
Agreement, subject to Section 6.4, the Depositor will keep in full force and
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation and will 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
Agreement, the Basic Documents and each other instrument or agreement necessary
or appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
(b) During the term of this Agreement, the Depositor shall observe
the applicable legal requirements for the recognition of the Depositor as a
legal entity separate and apart from its affiliates, including as follows:
(i) the Depositor shall maintain corporate records and books of
account separate from those of its affiliates;
(ii) except as otherwise provided in this Agreement, the Depositor
shall not commingle its assets and funds with those of its affiliates;
(iii) the Depositor shall hold such appropriate meetings of its Board
of Directors as are necessary to authorize all the Depositor's corporate
actions required by law to be authorized by the Board of Directors, shall
keep minutes of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities
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(and any successor Depositor not a corporation shall observe similar procedures
in accordance with its governing documents and applicable law);
(iv) the Depositor shall at all times hold itself out to the public
under the Depositor's own name as a legal entity separate and distinct from
its affiliates; and
(v) all transactions and dealings between the Depositor and its
affiliates will be conducted on an arm's-length basis
SECTION 6.3. Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement and the
representations made by the Depositor in this Agreement.
(a) The Depositor shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee and the Trustee and their respective officers,
directors, employees and agents from and against any taxes that may at any time
be asserted against any such Person with respect to the transactions
contemplated in this Agreement and any of the Basic Documents (except any income
taxes arising out of fees paid to the Owner Trustee or the Trustee and except
any taxes to which the Owner Trustee or the Trustee may otherwise be subject
to), including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to, and as of the date of, the sale of
the Receivables to the Issuer or the issuance of the Certificates and the
issuance and original sale of the Notes, or asserted with respect to ownership
of the Receivables or Federal or other income taxes arising out of distributions
on the Certificates and the Notes) and reasonable costs and expenses in
defending against the same or in connection with any application relating to the
Notes or Certificates under any state securities laws.
(b) The Depositor shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Trustee, the Certificateholders and the
Noteholders and the officers, directors, employees and agents of the Issuer, the
Owner Trustee and the Trustee from and against any and all costs, expenses,
losses, claims, damages and liabilities to the extent arising out of, or imposed
upon such Person through (i) the Depositor's willful misfeasance, bad faith or
gross negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement
and (ii) the Depositor's or the Issuer's violation of federal or state
securities laws in connection with the offering and sale of the Notes or in
connection with any application relating to the Notes under any state securities
laws.
(c) The Depositor shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Owner Trustee and its officers,
directors, employees and agents from and against any and all losses, claims,
damages and liabilities and reasonable costs and expenses arising out of, or
incurred in connection with, this Agreement or any of the Basic Documents, the
Owner Trust Estate, the acceptance or performance of the trusts and duties set
forth herein and in the Trust Agreement or the action or the inaction of the
Owner Trustee hereunder and under the Trust Agreement, except to the extent that
such cost, expense, loss,
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claim, damage or liability: (i) shall be due to the failure of the Owner
Trustee to perform in accordance with the Trust Agreement or the willful
misfeasance, bad faith or negligence of the Owner Trustee, or (ii) shall arise
from the breach by the Owner Trustee of any of its representations or warranties
set forth in Section 7.3 of the Trust Agreement. Such liability and
indemnification shall survive the termination of the Trust. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to this
paragraph, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Depositor, which approval shall not be unreasonably withheld.
(d) The Depositor shall pay any and all taxes levied or assessed upon
all or any part of the Trust Estate (other than those taxes expressly excluded
from the Depositor's responsibilities pursuant to the parentheticals in
paragraph (a) above).
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Trustee and the termination of this
Agreement or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and other reasonable expenses of
litigation. If the Depositor shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Depositor, without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Depositor. Any Person (a) into which the Depositor may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Depositor shall be a party or (c) which may succeed to the properties
and assets of the Depositor substantially as a whole, shall be the successor to
the Depositor without the execution or filing of any document or any further act
by any of the parties to this Agreement; provided, however, that the Depositor
hereby covenants that it will not consummate any of the foregoing transactions
except upon satisfaction of the following: (i) the surviving Depositor if other
than Barnett Auto Receivables Corp. executes an agreement of assumption to
perform every obligation of the Depositor under this Agreement, (ii) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 3.1 or 6.1 shall have been breached and no Event of Default,
and no event that, after notice or lapse of time, or both, would become an Event
of Default shall have happened and be continuing, (iii) the Depositor shall have
delivered to the Owner Trustee and the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and that the Rating Agency Condition shall
have been satisfied with respect to such transaction, (iv) the surviving
Depositor shall have a consolidated net worth at least equal to that of the
predecessor Depositor, (v) such transaction will not result in a material
adverse federal or state tax consequence to the Issuer, the Noteholders or the
Certificateholders and (vi) unless Barnett Auto Receivables Corp., is the
surviving entity, the Depositor shall have delivered to the Owner Trustee and
the Trustee an Opinion of Counsel either (A) stating that, in the opinion of
such counsel, all financing statements and continuation statements and
amendments thereto have
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been executed and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and Trustee, respectively, in the Receivables and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests.
SECTION 6.5. Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising under any Basic Document (provided that such reliance shall not limit in
any way the Depositor's obligations under Section 3.2). Except as provided in
this Agreement, the Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 6.6. Depositor May Own Certificates or Notes. The Depositor
and any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Depositor or an Affiliate thereof, except as expressly
provided herein or in any Basic Document.
SECTION 6.7. Security Interest. During the term of this Agreement,
the Depositor will not take any action to assign the security interest in any
Financed Vehicles other than pursuant to the Basic Documents.
ARTICLE VII.
The Servicer and the Sponsor
SECTION 7.1. Representations of BDFS. BDFS makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of the
Agreement and shall survive the sale of the Receivables to the Issuer and the
pledge thereof to the Trustee pursuant to the Indenture.
(a) Organization and Good Standing. BDFS is duly organized and
validly existing as a corporation in good standing under the laws of the State
of Florida with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has, the power,
authority and legal right to service the Receivables.
(b) Due Qualification. BDFS is duly qualified to do business and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including the
servicing of the Receivables as required by this Agreement) shall require such
qualifications, except where the failure to so obtain would not have a material
adverse impact either on BDFS, the transactions contemplated in the Basic
Documents or the Receivables.
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(c) Power and Authority of BDFS. BDFS has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery and performance of this Agreement have
been duly authorized by BDFS by all necessary corporate action. All
authorizations, consents, orders or approvals of or registrations or
declarations with any court, regulatory body, administrative agency or other
government instrumentality required to be obtained, effected or given by BDFS in
connection with the execution and delivery by BDFS of this Agreement or any of
the Basic Documents to which it is a party and the performance by BDFS of the
transactions contemplated by this Agreement or any of the Basic Documents to
which it is a party, have been duly obtained, effected or given and are in full
force and effect, except where failure to obtain the same would not have a
material adverse effect upon the rights of the Issuer, the Noteholders or the
Certificateholders.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of BDFS, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity (whether
applied in a proceeding of law or in equity).
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not result in any
breach of any of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under the certificate of
incorporation or by-laws of BDFS, or any material indenture, agreement or other
instrument to which BDFS is a party or by which it shall be bound; nor result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best of its
knowledge, any order, rule or regulation applicable to BDFS of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over BDFS or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending against BDFS, or, to its best knowledge, threatened against BDFS, before
any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over BDFS or its properties: (i) asserting
the invalidity of this Agreement or any of the Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iii) seeking any determination or
ruling that could reasonably be expected to have a material and adverse effect
on the performance by BDFS of its obligations under, or the validity or
enforceability of this Agreement or any of the Basic Documents, the Notes or the
Certificates or (iv) seeking to affect adversely the federal or state income tax
or ERISA attributes of the Issuer, the Notes or the Certificates.
(g) No Amendment or Waiver. No provision of any Receivable has been
waived, altered or modified in any respect, except pursuant to a document,
instrument or writing
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included in the relevant Receivable File, and no such amendment, waiver,
alteration or modification causes such Receivable not to conform to the other
warranties contained in this Section or those of the Depositor and the Sponsor
contained in Section 3.1.
(h) Approvals. All approvals, licenses, authorizations, consents,
orders or other actions of any person, corporation or other organization, or of
any court, governmental agency or body or official, required in connection with
the execution and delivery of this Agreement have been or will be taken or
obtained on or prior to the Closing Date.
(i) Location of Receivable Files. The Receivable Files are kept in
the offices of the Servicer, specified in Schedule B, or at such other office
specified in accordance with Section 3.4(b).
SECTION 7.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
The Servicer shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trustee, the Depositor, the Certificateholders and the
Noteholders and any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee, the Trustee or the Depositor from any and all losses,
claims, damages, liabilities and reasonable costs and expenses (including
reasonable attorneys' fees and expenses) to the extent arising out of, or
imposed upon any such Person through, the gross negligence, willful misfeasance
or bad faith of the Servicer in the performance of its obligations and duties
under this Agreement or in the performance of the obligations and duties of any
subservicer under any subservicing agreement or by reason of the reckless
disregard of its obligations and duties under this Agreement or by reason of the
reckless disregard of the obligations of any subservicer under any subservicing
agreement, where the final determination that any such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon any such Person
through, any such gross negligence, willful misfeasance, bad faith or
recklessness on the part of the Servicer or any subservicer, is established by a
court of law, by an arbitrator or by way of settlement agreed to by the
Servicer. Notwithstanding the foregoing, if the Servicer is rendered unable, in
whole or in part, by virtue of an act of God, act of war, fires, earthquake or
other natural disasters, to satisfy its obligations under this Agreement, the
Servicer shall not be deemed to have breached any such obligation upon the
sending of written notice of such event to the other parties hereto, for so long
as the Servicer remains unable to perform such obligation as a result of such
event. This provision shall not be construed to limit the Servicer's or any
other party's rights, obligations, liabilities, claims or defenses which arise
as a matter of law or pursuant to any other provision of this Agreement.
The Servicer shall indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Trustee, the Depositor, the Certificateholders and the
Noteholders or any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee, the Trustee or the Depositor from any and all losses,
claims, damages, liabilities and reasonable costs and expenses (including
reasonable attorneys' fees and expenses) to the extent arising out of or imposed
upon any such Person as a result of any compensation payable to any subcustodian
or subservicer
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(including any fees payable in connection with the release of any Receivable
File from the custody of such subservicer or in connection with the termination
of the servicing activities of such subservicer with respect to any Receivable)
whether pursuant to the terms of any subservicing agreement or otherwise.
The Servicer shall indemnify, defend and hold harmless the Trustee,
the Owner Trustee, the Trust, the Depositor, the Certificateholders and the
Noteholders from and against any taxes that may at any time be asserted against
the Trustee, the Trust, the Owner Trustee, the Certificateholders, the
Noteholders or the Depositor (other than any taxes based upon the income of any
such person), with respect to the transactions contemplated herein including,
without limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege, or license taxes and costs and expenses in
defending against the same.
The Servicer shall indemnify, defend, and hold harmless the Owner
Trustee and Trustee and each of their agents, officers, employees and other
Persons employed by each of them in connection with the Basic Documents from and
against all reasonable costs and expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein contained or contained in the Basic
Documents, if any, except to the extent that such reasonable cost or expense,
reasonable loss, claim, damage or liability: (a) shall be due to the willful
misfeasance, bad faith, or negligence (except for errors in judgment) of the
Owner Trustee or Trustee; (b) relates to any tax other than the taxes with
respect to which the Servicer shall be required to indemnify the Owner Trustee
or Trustee; or (c) shall arise from the Owner Trustee's or Trustee's breach of
any of its representations or warranties set forth in the Trust Agreement or the
Indenture, as applicable.
Indemnification under this Section shall survive the resignation and
removal of the Trustee and the Owner Trustee or the termination of this
Agreement.
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, BDFS. Any Person (a) into which BDFS may be merged or
consolidated, (b) which may result from any merger or consolidation to which
BDFS shall be a party or (c) which may succeed to the properties and assets of
BDFS, substantially as a whole, shall be the successor to BDFS without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided, however, that BDFS hereby covenants that it will not
consummate any of the foregoing transactions except upon satisfaction of the
following: (i) the surviving Servicer if other than BDFS, executes an agreement
of assumption to perform every obligation of BDFS under this Agreement,
(ii) immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 7.1 shall have been breached and no Servicer
Default, and no event that, after notice or lapse of time, or both, would become
a Servicer Default shall have occurred and be continuing, (iii) the Servicer
shall have delivered to the Owner Trustee and the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this
Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect
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to such transaction, (iv) the surviving Servicer shall have a consolidated net
worth at least equal to that of the predecessor Servicer, and (v) such
transaction will not result in a material adverse federal or state tax
consequence to the Issuer, the Noteholders or the Certificateholders.
SECTION 7.4. Limitation on Liability of BDFS and Others. Neither
BDFS nor any of its directors, officers, employees or agents shall be under any
liability to the Issuer, the Noteholders or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action by BDFS or any subservicer pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not protect
BDFS or any such person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties under
this Agreement. BDFS or any subservicer and any of their respective directors,
officers, employees or agents may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising under this Agreement.
Except as provided in this Agreement, BDFS shall not be under any
obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that BDFS, may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents to protect the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture.
SECTION 7.5. BDFS Not To Resign as Servicer. Subject to the
provisions of Section 7.3, BDFS hereby agrees not to resign from the obligations
and duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties hereunder shall no longer be
permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of BDFS, as Servicer shall be communicated to the Owner Trustee and
the Trustee at the earliest practicable time (and, if such communication is not
in writing, shall be confirmed in writing at the earliest practicable time) and
any such determination shall be evidenced by an Opinion of Counsel to such
effect delivered to the Owner Trustee and the Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until
the earlier of the Trustee or a Successor Servicer having assumed the
responsibilities and obligations of the resigning Servicer in accordance with
Section 8.2 or the date upon which any regulatory authority requires such
resignation.
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SECTION 7.6. Corporate Existence. (a) During the term of this
Agreement, subject to Section 6.4, BDFS will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation and will 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 Agreement, the
Basic Documents and each other instrument or agreement necessary or appropriate
to the proper administration of this Agreement and the transactions contemplated
hereby.
(a) During the term of this Agreement, BDFS shall observe the
applicable legal requirements for the recognition of BDFS as a legal entity
separate and apart from its Affiliates, including as follows:
(i) BDFS shall maintain corporate records and books of account
separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, BDFS shall not
commingle its assets and funds with those of its Affiliates;
(iii) BDFS shall hold such appropriate meetings of its Board of
Directors as are necessary to authorize all BDFS's corporate actions
required by law to be authorized by the Board of Directors, shall keep
minutes of such meetings and of meetings of its stockholder(s) and observe
all other customary corporate formalities (and any successor Servicer not a
corporation shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) BDFS shall at all times hold itself out to the public under
BDFS's own name as a legal entity separate and distinct from its
Affiliates; and
(v) all transactions and dealings between BDFS and its Affiliates
will be conducted on an arm's-length basis.
ARTICLE VIII.
Default
SECTION 8.1. Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Trustee for deposit
in any of the Trust Accounts any required payment or to direct the Trustee to
make any required distributions therefrom that shall continue unremedied for a
period of five Business Days after written notice of such failure is received by
the Servicer from the Owner Trustee or the Trustee or after discovery of such
failure by an Authorized Officer of the Servicer; or
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(b) failure on the part of the Servicer duly to observe or to perform
in any material respect any other covenants or agreements of the Servicer set
forth in this Agreement or any other Basic Document, which failure shall (i)
materially and adversely affect the rights of either the Certificateholders or
Noteholders and (ii) continue unremedied for a period of 60 days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given (A) to the Servicer by the Owner Trustee or the Trustee or
(B) to the Servicer and to the Owner Trustee and the Trustee by the Holders of
Notes evidencing not less than 25% of the Outstanding Amount of the Notes (or
for such longer period, not in excess of 120 days, as may be reasonably
necessary to remedy such default; provided that such default is capable of
remedy within 120 days and the Servicer delivers an Officers' Certificate to the
Owner Trustee and the Trustee to such effect and to the effect that the Servicer
has commenced or will promptly commence, and will diligently pursue, all
reasonable efforts to remedy such default); or
(c) an Insolvency Event occurs with respect to the Servicer or any
successor;
then, and in each and every case, so long as the Servicer Default
shall not have been remedied, either the Trustee, or the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Servicer and the Owner Trustee (and to the Trustee
if given by the Noteholders) may terminate all the rights and obligations (other
than the obligations set forth in Section 7.2) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Trustee or such successor Servicer
as may be appointed under Section 8.2; and, without limitation, the Trustee and
the Owner Trustee are hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall cooperate
with the successor Servicer, the Trustee and the Owner Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to a Receivable. All reasonable costs and expenses (including
reasonable attorneys' fees) incurred in connection with transferring the
Receivable Files to the successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of the occurrence of a Servicer
Default, the Owner Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.2. Appointment of Successor. (a) Upon the Servicer's
receipt of notice of termination, pursuant to Section 8.1 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
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termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the earlier
of (x) the date 45 days from the delivery to the Owner Trustee and the Trustee
of written notice of such resignation (or written confirmation of such notice)
in accordance with the terms of this Agreement or (y) the date upon which the
predecessor Servicer shall become unable to act as Servicer, as specified in the
notice of resignation and accompanying Opinion of Counsel. In the event of the
Servicer's termination hereunder, the Trustee shall appoint a successor
Servicer, and the successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Owner Trustee and the Trustee. In the
event that a successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section, the Trustee without further action shall automatically be appointed the
successor Servicer and the Trustee shall be entitled to the Servicing Fee.
Notwithstanding the above, the Trustee shall, if it shall be unwilling or unable
so to act, appoint or petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than $50,000,000 and
whose regular business shall include the servicing of automotive receivables, as
the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Trustee
acting as successor Servicer) shall be the successor in all respects to the
predecessor Servicer and shall be subject to all the responsibilities, duties
and liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and all the rights granted
to the predecessor Servicer by the terms and provisions of this Agreement. No
successor Servicer shall be liable for any acts or omissions of any predecessor
Servicer.
SECTION 8.3. Payment of Servicing Fee; Repayment of Advances. If the
Servicer shall change, the predecessor Servicer shall be entitled to (i) receive
any accrued and unpaid Servicing Fees through the date of the successor
Servicer's acceptance hereunder in accordance with Section 4.8. and (ii)
reimbursement for Outstanding Advances pursuant to Sections 5.3 and 5.7 with
respect to all Advances made by the predecessor Servicer.
SECTION 8.4. Notification to Noteholders and Certificateholders.
Upon the receipt by a Trust Officer of the Owner Trustee of written notice of
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VIII, the Owner Trustee shall give prompt written notice thereof to
Certificateholders and the Trustee shall give prompt written notice thereof to
Noteholders and to the Rating Agencies.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes (or
the Holders (as defined in the Trust Agreement) of Certificates evidencing not
less than a majority of the Percentage Interest, as applicable, in the case that
the Outstanding Amount of the Notes is zero) may, on behalf of all Noteholders
and Certificateholders, as the case may be, waive in writing any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from any of the
Trust Accounts in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and
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any Servicer Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto.
ARTICLE IX.
Termination
SECTION 9.1. Optional Purchase of All Receivables. (a) On the last
day of any Collection Period immediately preceding a Determination Date as of
which the then outstanding Pool Balance is 5% or less of the Initial Pool
Balance, the Servicer shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts. To exercise such option, the Depositor shall
deposit pursuant to Section 5.4 in the Collection Account an amount which, when
added to the amounts on deposit in the Collection Account for such Distribution
Date, equals the unpaid principal amount of the then outstanding Notes, plus
accrued and unpaid interest thereon. Each class of Notes will be redeemed
concurrently therewith.
(b) Reserved.
(c) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee, the Trustee and the Rating Agencies as soon as
practicable after the Servicer has received knowledge thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Trustee pursuant to this Agreement.
SECTION 9.2. Mandatory Sale of all Contracts. In accordance with the
procedures and schedule set forth in Exhibit C hereto (the "Auction
Procedures"), the Trustee (or, if the Notes have been paid in full and the
Indenture shall have been discharged in accordance with its terms, the Owner
Trustee) shall conduct or shall cause to be conducted an auction (the "Auction")
of the Receivables remaining in the Trust (such Receivables hereinafter referred
to as the "Auction Property") in order to effect a termination of the Trust
pursuant to Section 9.1 of the Trust Agreement if the Servicer has not exercised
its option to purchase the Receivables within 90 days after the last day of the
Collection Period as of which such right can be exercised pursuant to Section
9.1 . Such Auction shall be conducted within 10 days following such date. The
Depositor, the Sponsor, or the Servicer may, but shall not be required to, bid
at the Auction. Such Trustee shall sell or shall cause the sale and transfer of
the Auction Property to the highest bidder therefor at the Auction provided
that;
(i) the Auction has been conducted in accordance with the
Auction Procedures;
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(ii) such Trustee has received good faith bids for the Auction
Property from two prospective purchasers that are considered by such
Trustee, in its sole discretion, to be competitive participants in the
market for motor vehicle retail installment sale contracts and other motor
vehicle installment sale contracts;
(iii) a financial advisor, as advisor to such Trustee (in such
capacity, the "Advisor"), shall have advised such Trustee in writing that
at least two of such bidders (including the winning bidder) are
participants in the market for motor vehicle retail installment sale
contracts and other motor vehicle installment sale contracts willing and
able to purchase the Auction Property;
(iv) the highest bid in respect of the Auction Property is not
less than the aggregate fair market value of the Auction Property (as
determined by such Trustee in its sole discretion);
(v) any bid submitted by the Depositor, the Sponsor, the
Servicer or any Affiliate of any of them shall reasonably represent the
fair market value of the Auction Property, as independently verified and
represented in writing by a qualified independent third party evaluator
(which may include the Advisor or an investment bank firm) selected by such
Trustee; and
(vi) the highest bid would result in proceeds from the sale of
the Auction Property which will be at least equal to the sum of (A) the
greater of (1) the aggregate Purchase Price for the Receivables (including
defaulted Receivables), plus the appraised value of any other property held
by the Trust (less liquidation expenses) or (2) an amount that, when added
to amounts on deposit in the Collection Account and available for
distribution to Securityholders on the second Distribution Date following
the consummation of such sale (the "Liquidation Distribution Date"), would
result in proceeds sufficient to distribute to Securityholders the amounts
of interest due to the Securityholders for such Distribution Date and any
unpaid interest payable to the Securityholders with respect to one or more
prior Distribution Dates and the outstanding principal amount of the Notes,
and (B) the Total Servicing Fee payable on such second Distribution Date.
Provided that all of the conditions set forth in clauses (i) through
(vi) have been met, such Trustee shall sell and transfer the Auction Property,
without representation, warranty or recourse, to such highest bidder in
accordance with and upon completion of the Auction Procedures. Such Trustee
shall deposit the purchase price for the Auction Property in the Collection
Account at least one Business Day prior to such second succeeding Distribution
Date. In addition, the Auction must stipulate that the Servicer be retained to
service the Receivables on terms substantially similar to those in the
Agreement. In the event that any of such conditions are not met or such highest
bidder fails or refuses to comply with any of the Auction Procedures, such
Trustee shall decline to consummate such sale and transfer. In the event such
sale and transfer is not consummated in accordance with the foregoing, however,
such Trustee may from
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time to time in the future, but shall not be under any further obligation to,
solicit bids for sale of the assets of the Trust upon the same terms and
conditions as set forth above.
If any of the foregoing conditions are not met, such Trustee shall
decline to consummate such sale and shall not be under any obligation to solicit
any further bids or otherwise negotiate any further sale of Receivables
remaining in the Trust. In such event, however, such Trustee may from time to
time solicit bids in the future for the purchase of such Receivables pursuant to
this Section 9.2.
If applicable, the Trustee shall provide notice to the Owner Trustee
of the termination of the Trust pursuant to this Section 9.2 as soon as
practicable upon the consummation of the mandatory sale of the Receivables
pursuant to this Section 9.2. Each of the Servicer, the Trustee and the
Depositor acknowledge that the duties and responsibilities of the Issuer under
the Basic Documents shall be performed by the Servicer, and not by the Owner
Trustee.
ARTICLE X
Administrative Duties of the Servicer
SECTION 10.1. Administrative Duties. (a) Duties with Respect to the
Indenture and Depository Agreement and the Basic Documents. The Servicer shall
perform all its duties and the duties of the Issuer under the Depository
Agreement. In addition, the Servicer shall consult with the Owner Trustee as
the Servicer deems appropriate regarding the duties of the Issuer under the
Indenture, the Depository Agreement and the Basic Documents. The Servicer shall
monitor the performance of the Issuer and shall provide notice to the Owner
Trustee when action is necessary to comply with the Issuer's duties under the
Indenture, the Depository Agreement and the Basic Documents. The Servicer shall
prepare for execution by the Issuer or shall cause the preparation by other
appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Indenture, the Depository Agreement and the Basic
Documents. In furtherance of the foregoing, the Servicer shall take all
appropriate action that is the duty of the Issuer to take pursuant to the
Indenture and the Basic Documents.
(b) Duties with Respect to the Issuer. (i) In addition to the
duties of the Servicer set forth in this Agreement or any of the Basic
Documents, the Servicer shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to this Agreement or any of the
Basic Documents, and at the request of the Owner Trustee shall take all
appropriate action that is the duty of the Issuer to take pursuant to this
Agreement or any of the Basic Documents. The Servicer shall administer, perform
or supervise the performance of such other activities in connection with the
Collateral (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are
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expressly requested by the Owner Trustee and are reasonably within the
capability of the Servicer.
(ii) Notwithstanding anything in this Agreement or any of the
Basic Documents to the contrary, the Servicer shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Issuer's payments (or allocations of income) to a
Certificateholder (as defined in the Trust Agreement) as contemplated in
Section 5.2(c) of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Servicer shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 5.6(a),
(b), (c) and (d) of the Trust Agreement with respect to, among other
things, accounting and reports to Owners (as defined in the Trust
Agreement); provided, however, that the Owner Trustee shall retain
responsibility for the distribution to Certificateholders of the Schedule
K-1s furnished to the Owner Trustee by the Servicer which may be necessary
to enable each Certificateholder to prepare its federal and state income
tax returns.
(iv) The Servicer shall perform the duties of the Servicer
specified in Section 10.2 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Servicer under this
Agreement or any of the Basic Documents.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Servicer may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that
the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Servicer's
opinion, no less favorable to the Issuer in any material respect.
(c) Tax Matters. The Servicer shall prepare and file all tax
returns, tax elections, financial statements and such annual or other reports of
the Issuer as are necessary for preparation of tax reports as provided in
Article V of the Trust Agreement, including without limitation forms 1099 and
1065, if applicable.
(d) Non-Ministerial Matters. With respect to matters that in
the reasonable judgment of the Servicer are non-ministerial, the Servicer shall
not take any action pursuant to this Article X unless within a reasonable time
before the taking of such action, the Servicer shall have notified the Owner
Trustee and the Trustee of the proposed action and the Owner Trustee and, with
respect to items (A), (B), (C) and (D) below, the Trustee shall not have
withheld consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the Indenture;
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(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of
the Receivables);
(C) the amendment, change or modification of this Agreement
or any of the Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or the
appointment of Successor Servicers or the consent to the assignment by
the Note Registrar, Paying Agent or Trustee of its obligations under
the Indenture; and
(E) the removal of the Trustee.
(e) Exceptions. Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic Documents,
the Servicer, in its capacity hereunder, shall not be obligated to, and shall
not, (1) make any payments to the Noteholders or Certificateholders under the
Basic Documents, (2) sell the Indenture Trust Estate pursuant to Section 5.4 of
the Indenture, (3) take any other action that the Issuer directs the Servicer
not to take on its behalf or (4) in connection with its duties hereunder assume
any indemnification obligation of any other Person.
SECTION 10.2. Records. The Servicer shall maintain appropriate books
of account and records relating to services performed under this Agreement,
which books of account and records shall be accessible for inspection by the
Issuer at any time during normal business hours.
SECTION 10.3. Additional Information To Be Furnished to the Issuer.
The Servicer shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
ARTICLE XI
Miscellaneous Provisions
SECTION 11.1. Amendment. This Agreement may be amended by all of the
Sponsor, the Depositor, the Servicer and the Owner Trustee, with the consent of
the Trustee (which consent may not be unreasonably withheld), but without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity or defect, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Owner Trustee and the Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder.
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This Agreement may also be amended from time to time by all of the
Sponsor, the Depositor, the Servicer and the Owner Trustee, with the consent of
the Trustee, the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes and the consent of the Holders
(as defined in the Trust Agreement) of Certificates evidencing not less than a
majority of the Percentage Interest for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made for the benefit of the Noteholders or the Certificateholders or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Notes and the
Percentage Interest, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
the Holders (as defined in the Trust Agreement) of all the outstanding
Certificates affected thereby.
Prior to its execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Rating Agencies. Promptly after its execution of any such
amendment or consent, the Owner Trustee shall furnish written notification of
the substance of such amendment or consent to each Rating Agency, each
Certificateholder and the Trustee.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied and the Opinion of Counsel
referred to in Section 11.2(i)(1) has been delivered. The Owner Trustee and the
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's or the Trustee's, as applicable, own rights, duties
or immunities under this Agreement or otherwise.
SECTION 11.2. Protection of Title to Trust. (a) The Depositor shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of the
Issuer and the interests of the Trustee in the Receivables and in the proceeds
thereof. The Depositor shall deliver (or cause to be delivered) to the Owner
Trustee and the Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Neither the Depositor nor the Servicer shall (nor shall the
Servicer permit an Originator to) change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with
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paragraph (a) above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given the Owner Trustee and the Trustee at
least five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each of the Depositor and the Servicer shall have an
obligation to give the Owner Trustee and the Trustee at least 60 days' prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Servicer shall at all times maintain each office from which it
shall service Receivables, and its principal executive office, within the United
States of America.
(d) The Servicer shall (and shall cause each Originator with
respect to the Related Receivables to) maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
and Payahead Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any backup archives) that refer to
a Receivable shall indicate clearly the interest of the Issuer and the Trustee
in such Receivable and that such Receivable is owned by the Issuer and has been
pledged to the Trustee. Indication of the Issuer's and the Trustee's interest
in a Receivable shall be deleted from or modified on the Servicer's computer
systems when, and only when, the related Receivable shall have been paid in full
or repurchased by the Depositor or the Sponsor or purchased by the Servicer.
(f) If at any time the Sponsor, the Depositor or the Servicer
shall propose to sell, grant a security interest in or otherwise transfer any
interest in automotive receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Trustee.
(g) The Servicer shall permit the Trustee and its agents at any
time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request at any time the Owner Trustee or the Trustee
shall have reasonable grounds to believe that such request is necessary in
connection with the performance
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of its duties under this Agreement or any of the Basic Documents, the Servicer
shall furnish to the Owner Trustee or to the Trustee, within five Business Days,
a list of all Receivables (by contract number and name of Obligor) then held as
part of the Trust, together with a reconciliation of such list to the Schedule
of Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Trustee:
(1) promptly after the execution and delivery of this Agreement
and of each amendment thereto, an Opinion of Counsel either
(A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and the Trustee in
the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details
are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than
three months after the Cutoff Date, an Opinion of Counsel,
dated as of a date during such 120-day period, either (A)
stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect
the interest of the Owner Trustee and the Trustee in the
Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details
are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest.
Each Opinion of Counsel referred to in clause (l) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
(j) The Depositor shall, to the extent required by applicable law,
cause the Notes to be registered with the Securities and Exchange Commission
pursuant to Section 12(b) or Section 12(g) of the Exchange Act within the time
periods specified in such sections.
SECTION 11.3. Notices. All demands, notices and communications
upon or to the Depositor, the Servicer, the Owner Trustee, the Trustee or the
Rating Agencies under this Agreement shall be in writing, personally delivered,
sent by overnight courier or mailed by certified mail, return receipt requested,
and shall be deemed to have been duly given upon receipt (a) in the case of the
Depositor, to Barnett Auto Receivables Corp., 3800 Howard Hughes
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Parkway, Suite 1560, Las Vegas, Nevada 89109, Attention: General Counsel, (b)
in the case of the Sponsor, to Barnett Dealer Financial Services, Inc., 10401
Deerwood Park Boulevard, Jacksonville, Florida 32256, Attention: General
Counsel, (c) in the case of the servicer, to Barnett Dealer Financial Services,
Inc., 10401 Deerwood Park Boulevard, Jacksonville, Florida 32256, Attention:
General Counsel, (d) in the case of the Issuer or the Owner Trustee, at the
Corporate Trust Office (as defined in the Trust Agreement), (e) in the case of
the Trustee, at the Corporate Trust Office, (f) in the case of Moody's, to
Moody's Investors Service, Inc., to 99 Church Street, New York, New York 10004,
Attention: ABS Monitoring Department and (e) in the case of Standard & Poor's,
to Standard & Poor's Corporation, 26 Broadway (15th Floor), New York, New York
10004, Attention of Asset Backed Surveillance Department.
SECTION 11.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.4 and 7.3 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Depositor or the Servicer.
SECTION 11.5. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Depositor, the Servicer, the
Issuer, the Owner Trustee and for the benefit of the Certificateholders, the
Trustee and the Noteholders, as third-party beneficiaries, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.7. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.8. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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SECTION 11.10. Assignment to Trustee. The Depositor hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Trustee pursuant to the Indenture for the
benefit of the Noteholders of all right, title and interest of the Issuer in, to
and under the Receivables and/or the assignment of any or all of the Issuer's
rights and obligations hereunder to the Trustee.
SECTION 11.11. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Servicer and the Depositor shall not, prior
to the date which is one year and one day after the termination of this
Agreement with respect to the Issuer, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Issuer under any
Federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
SECTION 11.12. Limitation of Liability of Owner Trustee and Trustee.
(a) Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by The Bank of New York, not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
The Bank of New York, in its individual capacity or, except as expressly
provided in the Trust Agreement, as Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or under any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or 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
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by U.S. Bank National Association not in its
individual capacity but solely as Trustee and in no event shall U.S. Bank
National Association have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 11.13. Independence of the Servicer. For all purposes of
this Agreement, the Servicer shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Servicer shall have
no authority to act for or represent the Issuer or the Owner Trustee in any way
and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
SECTION 11.14. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Servicer and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate
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entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective duly authorized officers as
of the day and year first above written.
BARNETT AUTO TRUST 1997-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee on behalf of
the Trust,
By:____________________________________
Name:
Title:
BARNETT DEALER FINANCIAL SERVICES, INC.,
Servicer and Sponsor,
By:____________________________________
Name:
Title:
BARNETT AUTO RECEIVABLES CORP.
Depositor,
By:____________________________________
Name:
Title:
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Acknowledged and Accepted:
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity
but solely as Trustee,
By:___________________________
Name:
Title:
Acknowledged and Accepted:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee,
By:___________________________
Name:
Title:
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SCHEDULE A
Schedule of Receivables
Delivered to the Owner Trustee and the Trustee at Closing
<PAGE>
SCHEDULE B
Location of Receivables
Barnett Dealer Financial Services, Inc.
10401 Deerwood Park Boulevard
Jacksonville, Florida 32256
Oxford Resources Corp.
270 South Service Road
Melville, New York 11747
<PAGE>
EXHIBIT A
FORM OF MONTHLY SECURITYHOLDER STATEMENT
BARNETT AUTO TRUST 1997-A
5.6544% Class A-1 Asset-Backed Notes
5.92% Class A-2 Asset-Backed Notes
6.03% Class A-3 Asset-Backed Notes
6.18% Class A-4 Asset-Backed Notes
6.26% Class A-5 Asset-Backed Notes
6.38% Class B Asset-Backed Notes
Asset Backed Certificates
Distribution Date:
Collection Period:
Under the Sale and Servicing Agreement dated as of September 1, 1997 among
Barnett Dealer Financial Services, Inc., as servicer (the "Servicer") and
sponsor (the "Sponsor"), Barnett Auto Receivables Corp., as depositor (the
"Depositor"), Barnett Auto Trust 1997-A, as issuer (the "Trust"), the Servicer
is required to prepare certain information each month regarding current
distributions to Noteholders and Certificateholders and the performance of the
Trust during the previous month. The information that is required to be
prepared with respect to the Distribution Date and Collection Period listed
above is set forth below. Certain of the information is presented on the basis
of an original principal amount of $1,000 per Note, and certain other
information is presented based upon the aggregate amounts for the Trust as a
whole.
A. Information Regarding the Current Monthly Distribution.
1. Notes.
(a) The aggregate amount of the
distribution with respect to each class of the
Notes..................................................... $________
(b) The amount of the distribution set
forth in paragraph A.1.(a) above in
respect of interest on each class of the Notes............ $________
(c) The amount of the distribution set
forth in paragraph A.1.(a) above in
respect of principal of each class of the Notes........... $________
(d) The amount of the distributions set
<PAGE>
forth in paragraph A.1(a) payable
out of amounts withdrawn from the Reserve
Account with respect to the Notes......................... $________
(e) The amount of the distribution set
forth in paragraph A.1.(a) above
per $1,000 interest in each class of the Notes............ $________
(f) The amount of the distribution set
forth in paragraph A.1.(b) above
per $1,000 interest in each class of the Notes............ $________
(g) The amount of the distribution set
forth in paragraph A.1.(c) above
per $1,000 interest in each class of the Notes............ $________
(h) The amount of the distribution set
forth in paragraph A.1.(d) above
per $1,000 interest in the Notes.......................... $________
2. Certificates.
(a) The aggregate amount of the
distribution with respect to the
Certificates.............................................. $________
B. Information Regarding the Performance of the Trust.
1. Pool Balance and Note Principal Balance.
(a) The Pool Balance at the close of business on
the last day of the Collection Period giving
effect to payments allocated to
principal as set forth in Paragraph A.1(c)................ $________
(b) The Note Balance of each class after
giving effect to payments allocated to
principal as set forth in Paragraph A.1(c)................ $________
(c) The Note Pool Factor of each class after
giving affect to the payments set
forth in paragraph A.1(c)................................. $________
(d) Reserved.................................................. $________
<PAGE>
(e) Reserved.................................................. $________
(f) The aggregate Purchase Amount for
all Receivables that were repurchased
in the preceding Collection Period........................ $________
(g) The aggregate Payahead Balance on
such Distribution Date.................................... $________
(h) The change in the Payahead Balance
from the preceding Distribution Date...................... $________
(i) The amount of Outstanding Advances on such
Distribution Date......................................... $________
(j) The change in Outstanding Advances
from the preceding Distribution Date...................... $________
(k) Total Collections by the Servicer......................... $________
(l) All amounts received by the Trust from
the Servicer.............................................. $________
2. Servicing Fee.
The aggregate amount of the Servicing
Fee paid to the Servicer with respect
to the preceding Collection Period ....................... $________
3. Payment Shortfalls.
(a) The amount of the Class A Noteholders'
Interest Carryover Shortfall after
giving effect to the payments set forth
in paragraph A.1(b) above................................. $________
(b) The amount of the Class A Noteholders'
Interest Carryover Shortfall set
forth in paragraph B.3.(a) above per
$1,000 interest with respect to
the Class A Notes:........................................ $_________
(c) The amount of the Class B Noteholders'
Interest Carryover Shortfall after
giving effect to the payments set forth
<PAGE>
in paragraph A.1(b) above:................................ $________
(d) The amount of the Class B Noteholders'
Interest Carryover Shortfall set
forth in paragraph B.3.(c) above per
$1,000 interest with respect to
the Class B Notes:........................................ $________
(e) The amount of the Class A Noteholders'
Principal Carryover Shortfall after giving
effect to the payments set forth in paragraph A.1(c) above $________
(f) The amount of the Class A Noteholders'
Principal Carryover Shortfall set
forth in paragraph B.3.(e) above per
$1,000 interest with respect to
the Class B Notes:........................................ $________
(g) The amount of the Class B Noteholders'
Principal Carryover Shortfall after giving
effect to the payments set forth in paragraph A.1(c) above $________
(h) The amount of the Class B Noteholders'
Principal Carryover Shortfall set
forth in paragraph B.3.(g) above per
$1,000 interest with respect to
the Class B Notes:........................................ $________
4. Losses and Delinquencies
(a) The aggregate amount scheduled to
be paid, including unearned finance
and other charges, for which Obligors
are delinquent 60 days or
more...................................................... $________
(b) The amount of the aggregate Realized
Losses for such Collection Period......................... $________
(c) Cumulative Realized Losses from the Closing Date,
including Realized Losses for such Collection
Period.................................................... $________
(d) Recoveries, if any, for such Collection Period............ $________
(e) Aggregate outstanding principal balance of
Receivables that are currently in repossession status
<PAGE>
(excluding Liquidation Receivables........................ $________
5. Reserve Account
(a) The Reserve Account balance as of
the last day of the preceding
Collection Period, including earnings..................... $________
(b) Earnings included in above balance........................ $________
(c) Transfer to Reserve Account from
Collection Account on Distribution
Date...................................................... $________
(d) The Reserve Account balance as of
the Distribution Date set forth above
after giving effect to the Collection
Account on such Distribution Date.......................... $________
(e) The Specified Reserve Account Balance as of
the Distribution Date set forth above...................... $________
6. Delinquency
(a) Percentage of principal balance of
Receivables delinquent 1 to 30 days..........................________%
(b) Percentage of principal balance of
Receivables delinquent 31 to 60 days.........................________%
(c) Percentage of principal balance of
Receivables delinquent 61 to 90 days........................ ________%
<PAGE>
EXHIBIT B
Form of Servicer's Certificate
BARNETT DEALER FINANCIAL SERVICES, INC.
CERTIFICATE OF SERVICING OFFICER
The undersigned certifies that he is the [title], of Barnett Dealer
Financial Services, Inc., a corporation organized under the laws of the State
of Florida ("BDFS") and that as such he is duly authorized to execute and
deliver this certificate on behalf of BDFS pursuant to Section 4.9 of the
Sale and Servicing Agreement, dated as of September 1, 1997 (the "Agreement")
by and among BDFS, as servicer (the "Servicer") and sponsor (the "Sponsor"),
Barnett Auto Receivables Corp., as depositor (the "Depositor") and Barnett
Auto Trust 1997-A, as issuer (the "Issuer"), (all capitalized terms used
herein without definition having the respective meanings specified in the
Agreement), and further certifies that:
1. The Monthly Securityholder Statement for the period from
______________________________________________________________________________
______________________________________________________________________________
2. As of the date hereof, no Servicer Default or event that with
notice or lapse of time or both would become a Servicer Default has occurred.
[If a Servicer Default has occurred, such Servicer Default shall be specified
and its current status reported.]
IN WITNESS WHEREOF, we have affixed hereunto our signatures this day of, .
BARNETT DEALER FINANCIAL
SERVICES, INC.
as Servicer
By:_______________
Name:
Title:
<PAGE>
EXHIBIT C
TERMINATION - AUCTION PROCEDURES
The following sets forth the auction procedures to be followed in
connection with a sale effected pursuant to Section 9.2 of the Sale and
Servicing Agreement (the "Agreement"), dated as of September 1, 1997 by and
among Barnett Auto Trust 1997-A (the "Trust"), Barnett Dealer Financial
Services, Inc., as servicer (the "Servicer") and sponsor (the "Sponsor") and
Barnett Auto Receivables Corp., as depositor (the "Depositor"). Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement. All references herein to "Trustee" shall be
references to U.S. Bank National Association, as Indenture Trustee, pursuant to
an Indenture, dated as of September 1, 1997, between the Trust and the Indenture
Trustee. However, if the Notes have been paid in full, and the Indenture has
been discharged in accordance with its terms, all references herein to "Trustee"
shall be references to the Owner Trustee.
Pre-Auction Process
(a) Upon receiving notice of the Auction, the Advisor will initiate its
general Auction procedures consisting of the following: (i) with the
assistance of the Servicer, prepare a general solicitation package
along with a confidentiality agreement; (ii) derive a list of
qualified bidders, in a commercially reasonable manner; (iii) initiate
contact with all qualified bidders; (iv) send a confidentiality
agreement to all qualified bidders; (v) upon receipt of a signed
confidentiality agreement, send solicitation packages to all
interested bidders on behalf of the applicable Trustee; and (vi)
notify the Servicer of all potential bidders and anticipated
timetable.
(b) The general solicitation package will include: (i) the prospectus
from the public offering of the Notes; (ii) a copy of all monthly
servicing reports or a copy of all annual servicing reports and the
prior year's monthly servicing reports; (iii) a form of a Purchase
Agreement and Sale and Servicing Agreement; (iv) a description of the
minimum purchase price required to cause the Trustee to sell the
Auction Property as set forth in Section 9.2 of the Agreement; (v) a
formal bidsheet; (vi) a detailed timetable; and (vii) a preliminary
data tape of the Pool Balance as of the related Distribution Date
reflecting the same data attributes used to create the Cutoff Date
tables for the Prospectus Supplement dated September 18, 1997 relating
to the offering of the Notes.
(c) The applicable Trustee, with the assistance of the Servicer and the
Advisor, will maintain an auction package beginning at the time of
closing of the transaction, which will contain terms (i)-(iii) listed
in the preceding paragraph. If the Advisor is unable to perform its
role as advisor to the applicable Trustee, the Servicer acting in its
capacity under the Agreement will select a successor Advisor and
inform the applicable Trustee of its actions.
<PAGE>
(d) The Advisor will send solicitation packages to all bidders at least 15
business days before the date of the Auction. Bidders will be
required to submit any due diligence questions in writing to the
Advisor for determination of their relevancy, no later than 10
business days before the date of the Auction. The Servicer and the
Advisor will be required to satisfy all relevant questions at least
five Business Days prior to the date of the Auction and distribute the
questions and answers to all bidders.
Auction Process
(a) _______________________, in its role as Advisor to the applicable
Trustee, will be allowed to bid in the Auction, but will not be
required to do so.
(b) The Servicer will also be allowed to bid in the Auction if it deems
appropriate, but will not be required to do so.
(c) On the date of the Auction, all bids will be due by facsimile to the
offices of the applicable Trustee by 1:00 p.m. New York City time,
with the winning bidder to be notified by 2:00 p.m. New York City
time. All acceptable bids (as described in Section 9.2 of the
Agreement) will be due on a conforming basis on the bid sheet
contained in the solicitation package.
(d) If the applicable Trustee receives fewer than two market value bids
from participants in the market for motor vehicle retail installment
sale contracts and other motor vehicle installment sale contracts
willing and able to purchase the Auction Property, the applicable
Trustee shall decline to consummate the sale.
(e) Upon notification to the winning bidder, a good faith deposit equal to
one percent (1%) of the Pool Balance will be required to be wired to
the applicable Trustee upon acceptance of the bid. This deposit,
along with any interest income attributable to it, will be credited to
the purchase price but will not be refundable. The applicable Trustee
will establish a separate account for the acceptance of the good faith
deposit, until such time as the account is fully funded and all monies
are transferred into the Collection Account, such time not to exceed
one Business Day before the related Distribution Date (as described
above).
(f) The winning bidder will receive on the date of the Auction a copy of
the draft Purchase Agreement, Sale and Servicing Agreement and
Servicer's Representations and Warranties (which shall be
substantially identical to the representations and warranties set
forth in Section 7.1 of the Agreement).
(g) ______________, in its capacity as Advisor to the applicable Trustee,
will provide to the applicable Trustee a letter concluding whether or
not the winning bid is a fair market value bid. __________________
will also provide such letter if it is the winning bidder. In the
case where _____________ or the Servicer is the winning bidder it will
in its letter provide for market comparable valuations.
<PAGE>
(h) The Auction will stipulate that the Servicer be retained to service
the Receivables sold pursuant to the terms of the Purchase and Sale
Agreement and Servicing Agreement.
<PAGE>
EXHIBIT 4.2
=============================================================
BARNETT AUTO TRUST 1997-A
Class A-1 5.6544% Asset Backed Notes
Class A-2 5.92% Asset Backed Notes
Class A-3 6.03% Asset Backed Notes
Class A-4 6.18% Asset Backed Notes
Class A-5 6.26% Asset Backed Notes
Class B 6.38% Asset Backed Notes
________________________________
INDENTURE
Dated as of September 1, 1997
________________________________
U.S. BANK NATIONAL ASSOCIATION
Trustee
================================================================
<PAGE>
CROSS REFERENCE TABLE (1)
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) .........................................................3.9; 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).............................................2.7
(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.
<PAGE>
(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 (2)
(b)..............................................................3.3
318 (a)..............................................................11.7
(2) N.A. means Not Applicable.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 Definitions......................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act................9
SECTION 1.3 Rules of Construction............................................9
ARTICLE II
The Notes
SECTION 2.1 Form............................................................10
SECTION 2.2 Execution, Authentication and Delivery..........................10
SECTION 2.3 Temporary Notes.................................................11
SECTION 2.4 Registration; Registration of Transfer and Exchange.............11
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes......................12
SECTION 2.6 Persons Deemed Owner............................................13
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest...........13
SECTION 2.8 Cancellation....................................................14
SECTION 2.9 Release of Collateral...........................................15
SECTION 2.10 Book-Entry Notes...............................................15
SECTION 2.11 Notices to Clearing Agency.....................................16
SECTION 2.12 Definitive Notes...............................................16
SECTION 2.13 Reserved.......................................................16
ARTICLE III
Covenants
SECTION 3.1 Payment of Principal and Interest...............................16
SECTION 3.2 Maintenance of Office or Agency.................................17
SECTION 3.3 Money for Payments To Be Held in Trust..........................17
SECTION 3.4 Existence.......................................................18
SECTION 3.5 Protection of Trust Estate......................................19
SECTION 3.6 Opinions as to Trust Estate.....................................19
SECTION 3.7 Performance of Obligations; Servicing of Receivables............20
SECTION 3.8 Negative Covenants..............................................22
SECTION 3.9 Annual Statement as to Compliance...............................22
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms.............22
SECTION 3.11 Successor or Transferee........................................24
SECTION 3.12 No Other Business..............................................24
(i)
<PAGE>
SECTION 3.13 No Borrowing...................................................24
SECTION 3.14 Servicer's Obligations.........................................25
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities..............25
SECTION 3.16 Capital Expenditures...........................................25
SECTION 3.17 [Reserved].....................................................25
SECTION 3.18 Restricted Payments........................................... 25
SECTION 3.19 Notice of Events of Default....................................25
SECTION 3.20 Further Instruments and Acts...................................25
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture.........................25
SECTION 4.2 Application of Trust Money......................................27
SECTION 4.3 Repayment of Moneys Held by Paying Agent........................27
SECTION 4.4 Notice..........................................................27
ARTICLE V
Remedies
SECTION 5.1 Events of Default...............................................27
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..............28
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.29
SECTION 5.4 Remedies; Priorities............................................31
SECTION 5.5 Optional Preservation of the Receivables........................32
SECTION 5.6 Limitation of Suits.............................................33
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest........................................................33
SECTION 5.8 Restoration of Rights and Remedies..............................34
SECTION 5.9 Rights and Remedies Cumulative..................................34
SECTION 5.10 Delay or Omission Not a Waiver.................................34
SECTION 5.11 Control by Noteholders.........................................34
SECTION 5.12 Waiver of Past Defaults........................................35
SECTION 5.13 Undertaking for Costs..........................................35
SECTION 5.14 Waiver of Stay or Extension Laws...............................35
SECTION 5.15 Action on Notes................................................36
SECTION 5.16 Performance and Enforcement of Certain Obligations.............36
(ii)
<PAGE>
ARTICLE VI
The Trustee
SECTION 6.1 Duties of Trustee...............................................36
SECTION 6.2 Rights of Trustee...............................................37
SECTION 6.3 Individual Rights of Trustee....................................38
SECTION 6.4 Trustee's Disclaimer............................................38
SECTION 6.5 Notice of Defaults; Notice of Event of Default..................38
SECTION 6.6 Reports by Trustee to Holders...................................38
SECTION 6.7 Compensation and Indemnity......................................38
SECTION 6.8 Replacement of Trustee..........................................39
SECTION 6.9 Successor Trustee by Merger.....................................40
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee..................40
SECTION 6.11 Eligibility; Disqualification...................................41
SECTION 6.12 Preferential Collection of Claims Against Issuer...............42
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish Trustee Names and Addresses of Noteholders....42
SECTION 7.2 Preservation of Information; Communications to Noteholders......42
SECTION 7.3 Reports by Issuer...............................................43
SECTION 7.4 Reports by Trustee..............................................43
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money.............................................43
SECTION 8.2 Trust Accounts..................................................44
SECTION 8.3 General Provisions Regarding Accounts...........................45
SECTION 8.4 Release of Trust Estate.........................................46
SECTION 8.5 Opinion of Counsel..............................................46
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures without Consent of Noteholders..........47
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.............48
SECTION 9.3 Execution of Supplemental Indentures............................49
SECTION 9.4 Effect of Supplemental Indenture................................50
SECTION 9.5 Conformity with Trust Indenture Act.............................50
(iii)
<PAGE>
SECTION 9.6 Reference in notes to Supplemental Indentures...................50
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption.....................................................50
SECTION 10.2 Form of Redemption Notice......................................51
SECTION 10.3 Notes Payable on Redemption Date...............................51
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc......................52
SECTION 11.2 Form of Documents Delivered to Trustee.........................53
SECTION 11.3 Acts of Noteholders............................................54
SECTION 11.4 Notices, etc., to Trustee, Issuer and Rating Agencies..........55
SECTION 11.5 Notices to Noteholders; Waiver.................................55
SECTION 11.6 Alternate Payment and Notice Provisions........................56
SECTION 11.7 Conflict with Trust Indenture Act..............................56
SECTION 11.8 Effect of Headings and Table of Contents.......................56
SECTION 11.9 Successors and Assigns.........................................56
SECTION 11.10 Separability..................................................56
SECTION 11.11 Benefits of Indenture.........................................57
SECTION 11.12 Legal Holidays................................................57
SECTION 11.13 Governing Law.................................................57
SECTION 11.14 Counterparts..................................................57
SECTION 11.15 Recording of Indenture........................................57
SECTION 11.16 Trust Obligation..............................................57
SECTION 11.17 No Petition...................................................58
SECTION 11.18 Inspection....................................................58
Testimonium, Signatures and Seals
Exhibit A Schedule of Receivables
Exhibit B Form of Sale and Servicing Agreement
Exhibit C Form of Note Depository Agreement
Exhibit D Form of Class A-1 Note
Exhibit E Form of Class A-2 Note
Exhibit F Form of Class A-3 Note
Exhibit G Form of Class A-4 Note
Exhibit H Form of Class A-5 Note
Exhibit I Form of Class B Note
(iv)
<PAGE>
INDENTURE dated as of September 1, 1997, between
BARNETT AUTO TRUST 1997-A, a Delaware business trust (the
"Issuer"), and U.S. Bank National Association, a national
banking association, as trustee and not in its individual
capacity (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the benefit of the Holders of the Issuer's Class A-1 5.6544% Asset Backed
Notes (the "Class A-1 Notes"), Class A-2 5.92% Asset Backed Notes (the "Class
A-2 Notes"), Class A-3 6.03% Asset Backed Notes (the "Class A-3 Notes"), Clas
A-4 6.18% Asset Backed Notes (the "Class A-4 Notes"), Class A-5 6.26% Asset
Backed Notes (the "Class A-5 Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, the "Class A Notes") and
Class B 6.38% Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee at the Closing Date, as
Trustee for the benefit of the Holders of the Notes, a security interest in and
to all of the Issuer's right, title and interest in and to (a) the Receivables,
and all moneys received thereon (other than any proceeds from any Dealer
commission), on or after the Cutoff Date and, with respect to Receivables which
are Actuarial Receivables, all monies received thereon prior to the Cutoff Date
that are due on or after the Cutoff Date; (b) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and any other
interest of the Issuer in the Financed Vehicles; (c) any proceeds with respect
to claims or any physical damage, repossession, loss, skip, credit life and
credit accident, vendor's single interest and health insurance policies or
certificates relating to the Financed Vehicles or the Obligors; (d) any refunds
for the costs of extended service contracts with respect to Financed Vehicles,
refunds of unearned premiums with respect to credit life and credit accident and
health insurance policies covering Financed Vehicles or Obligors; (e) any
proceeds with respect to any Receivable repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of representation or warranty in the
related Dealer Agreement or a default by an Obligor resulting in the
repossession of the Financed Vehicle under such Dealer Agreement; (f) all funds
on deposit from time to time in the Trust Accounts, including the Reserve
Account Initial Deposit, and in all investments and proceeds thereof (including
all income thereon); (g) the Sale and Servicing Agreement and the Loan Purchase
Agreement; and (h) the proceeds of any and all of the foregoing (collectively,
the "Collateral").
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
Class A Notes, equally and ratably, and the Class B Notes on a subordinated
basis, equally and ratably without prejudice, priority or distinction except as
set forth herein, and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture.
<PAGE>
The Trustee, as Trustee on behalf of the Holders of the Notes,
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 Holders of the Notes may be adequately and effectively protected.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 DefinitionsSECTION 1.1 Definitions. Except as
otherwise specified herein, the following terms have the respective meanings
set forth below for all purposes of this Indenture.
"Act" has the meaning specified in Section 11.3(a).
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means 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" have meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Issuer and the
Servicer, any officer or agent acting under a power of attorney of the Owner
Trustee or the Servicer, as applicable, who is authorized to act for the Owner
Trustee or the Servicer, as applicable, in matters relating to the Issuer and
who is identified on the list of Authorized Officers delivered by each of the
Owner Trustee and the Servicer to the Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Trust, the Trust Agreement,
the Sale and Servicing Agreement, the Loan Purchase Agreement, the Note
Depository Agreement and other documents and certificates delivered in
connection therewith.
"Book Entry Notes" means 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 2.10.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in the City of New York,
Wilmington, Delaware or Chicago, Illinois are authorized or obligated by law,
regulation or executive order to remain closed.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Class A Note" means a Class A-1 Note, Class A-2 Note, Class A-3 Note,
Class A-4 Note and Class A-5 Note.
-2-
<PAGE>
"Class A-1 Notes" means the Class A-1 5.6544% Asset Backed Notes,
substantially in the form of Exhibit D.
"Class A-1 Interest Rate" means 5.6544% per annum (computed on the
basis of the actual number of days elapsed in a 360-day year).
"Class A-2 Notes" means the Class A-2 5.92% Asset Backed Notes,
substantially in the form of Exhibit E.
"Class A-2 Interest Rate" means 5.92% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-3 Notes" means the Class A-3 6.03% Asset Backed Notes,
substantially in the form of Exhibit F.
"Class A-3 Interest Rate" means 6.03% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-4 Notes" means the Class A-4 6.18% Asset Backed Notes,
substantially in the form of Exhibit G.
"Class A-4 Interest Rate" means 6.18% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-5 Notes" means the Class A-5 6.26% Asset Backed Notes,
substantially in the form of Exhibit H.
"Class A-5 Interest Rate" means 6.26% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class B Notes" means the Class B 6.38% Asset Backed Notes,
substantially in the form of Exhibit I.
"Class B Interest Rate" means 6.38% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means 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.
-3-
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered which office at date of the execution of this Agreement is located
at 111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601, Attention:
Corporate Trust (Telephone: (312) 228-9400; Facsimile: (312) 228-9401 or at such
other address as the Trustee may designate from time to time by notice to the
Noteholders, the Servicer and the Issuer, or the principal corporate trust
office of any successor Trustee (the address of which the successor Trustee will
notify the Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, grant a lien upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this 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 Collateral and all other moneys 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.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indenture" means this Indenture as amended and supplemented from time
to time.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Depositor
-4-
<PAGE>
and any Affiliate of any of the foregoing persons, (b) does not have any direct
financial interest or any material indirect financial interest in the Issuer,
any such other obligor, the Depositor or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Issuer, any such other obligor, the
Depositor 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" means a certificate or opinion to be
delivered to the Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1, made by an
Independent appraiser or other expert appointed by an Issuer Order 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.
"Interest Rate" means, with respect to the (i) Class A-1 Notes, the
Class A-1 Interest Rate, (ii) Class A-2 Notes, the Class A-2 Interest Rate,
(iii) Class A-3 Notes, the Class A-3 Interest Rate, (iv) Class A-4 Notes, the
Class A-4 Interest Rate, (v) Class A-5 Notes, the Class A-5 Interest Rate and
(vi) Class B Notes, the Class B Interest Rate.
"Issuer" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Trustee.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note, a
Class A-4 Note, a Class A-5 Note or a Class B Note.
"Note Depository Agreement" means the agreement among the Issuer, the
Trustee, the Servicer and The Depository Trust Company, as the initial Clearing
Agency, dated one Business Day prior to Closing Date, substantially in the form
of Exhibit C.
"Note Owner" means, with respect to a Book-Entry Note, the person who
is the 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 participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 and TIA Section 314,
and delivered to the Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
any Authorized Officer of the Issuer.
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"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer and who shall be satisfactory to the Trustee, and which
opinion or opinions shall be addressed to the Trustee as Trustee, shall comply
with any applicable requirements of Section 11.1, and shall be in form and
substance satisfactory to the Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent in trust for the Holders 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 therefor, satisfactory to the Trustee); and
(iii)Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned by
the Issuer, any other obligor upon the Notes, the Depositor or any Affiliate of
any of the foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes that a Responsible Officer of the Trustee either
actually knows to be so owned or has received written notice thereof 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 satisfaction of the
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 Depositor or
any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or class of Notes, as applicable, Outstanding at the date of
determination.
"Paying Agent" means the Trustee or any other Person that meets the
eligibility standards for the Trustee specified in Section 6.11 and is
authorized by the Issuer to make the payments to and distributions from the
Collection Account and the Note Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Payment Date" means a Distribution Date.
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"Predecessor Note" means, 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 the purpose of this definition, any Note
authenticated and delivered under Section 2.5 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.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Record Date" means, with respect to a Distribution Date or Redemption
Date the day immediately preceding the related Distribution Date or Redemption
Date or, in the event Definitive Securities have been issued, the last day of
the month immediately preceding the month in which such Distribution Date
occurs.
"Redemption Date" means (a) in the case of a redemption of the Notes
pursuant to Section 10.1(a) or a payment to Noteholders pursuant to Section
10.1(b), the Distribution Date specified by the Servicer or the Issuer pursuant
to Section 10.1(a) or (b) as applicable.
"Redemption Price" means (a) in the case of a redemption of the Notes
pursuant to Section 10.1(a), an amount equal to the unpaid principal amount of
the then outstanding Notes plus accrued and unpaid interest thereon to but
excluding the Redemption Date, or (b) in the case of a payment made to N
oteholders pursuant to Section 10.1(b), the amount on deposit in the Note
Distribution Account, but not in excess of the amount specified in clause (a)
above.
"Responsible Officer" means, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee, including any Vice President,
Assistant Vice President, Assistant Treasurer, Assistant Secretary, or any other
officer of the Trustee customarily 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 knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of September 1, 1997, among the Issuer, the Depositor, the Sponsor and
the Servicer, substantially in the form of Exhibit B as the same may be amended
or supplemented from time to time.
"Schedule of Receivables" means the listing of the Receivables set
forth in Exhibit A (which Exhibit may be in the form of microfiche).
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Successor Servicer" has the meaning specified in Section 3.7(e).
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit
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of the Noteholders (including all property and interests Granted to the
Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force on the date hereof, unless otherwise specifically provided.
"Trustee" means U.S. Bank National Association, a national banking
association, not in its individual capacity but as trustee under this Indenture,
or any successor trustee under this Indenture.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
(a) Except as otherwise specified herein, the following terms have
the respective meanings set forth in the Sale and Servicing Agreement as in
effect on the Closing Date for all purposes of this Indenture, and the
definitions of such terms are equally applicable both to the singular and plural
forms of such terms:
Section of Sale and
Term Servicing Agreement
Certificateholders.............................. Section 1.1
Closing Date.................................... Section 1.1
Collection Account.............................. Section 1.1
Collection Period............................... Section 1.1
Contract........................................ Section 1.1
Depositor........................................ Section 1.1
Depository Agreement............................ Section 1.1
Distribution Date............................... Section 1.1
Eligible Deposit Account......................... Section 1.1
Eligible Investments............................ Section 1.1
Final Scheduled Distribution Date............... Section 1.1
Final Scheduled Maturity Date.................... Section 1.1
Financed Vehicle................................ Section 1.1
Initial Pool Balance............................ Section 1.1
Note Distribution Account....................... Section 1.1
Noteholders' Distributable Amount............... Section 1.1
Noteholders' Percentage......................... Section 1.1
Obligor......................................... Section 1.1
Owner Trustee................................... Section 1.1
Person.......................................... Section 1.1
Pool Balance.................................... Section 1.1
Purchased Receivable............................ Section 1.1
Rating Agency................................... Section 1.1
Rating Agency Condition......................... Section 1.1
Receivable...................................... Section 1.1
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Reserve Account................................. Section 1.1
Servicer........................................ Section 1.1
Servicer Default................................ Section 1.1
Specified Reserve Account Balance............... Section 1.1
Total Distribution Amount....................... Section 1.1
Trust Accounts.................................. Section 1.1
Trust Agreement................................. Section 1.1
(b) Capitalized terms used herein and not otherwise defined herein or
in the Sale and Servicing Agreement have the meanings assigned to them in the
Trust Agreement.
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:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii)"or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
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ARTICLE II
The Notes
SECTION 2.1 Form. The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the Class B
Notes, in each case together with the Trustee's certificate of
authentication, shall be in substantially the forms set forth in Exhibits D,
E, F, G, H and I, respectively, with such appropriate insertions, omissions,
substitutions 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 endorsements placed thereon as may, consistently
herewith, be determined by the officers executing such Notes, as evidenced by
their execution of the Notes. 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.
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.
Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibit D, E, F, G, H or I are part of the terms of
this Indenture.
SECTION 2.2 Execution, Authentication and DeliverySECTION 2.2
Execution, Authentication and Delivery. The Notes shall be executed on
behalf of the Issuer by any of its Authorized Officers. The signature of any
such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding 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.
The Trustee shall upon Issuer Order authenticate and deliver Class
A-1 Notes for original issue in an aggregate principal amount of
$109,300,000, Class A-2 Notes for original issue in the aggregate principal
amount of $155,000,000, Class A-3 Notes for original issue in the aggregate
principal amount of $ 170,000,000, Class A-4 Notes for original issue in the
aggregate principal amount of $90,000,000, Class A-5 Notes for original issue
in the aggregate principal amount of $41,696,000 and Class B Notes for
original issue in the aggregate principal amount of $36,128,240. The
aggregate principal amount of Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class A-5 Notes and Class B Notes outstanding at any
time may not exceed such amounts except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Class
A Notes shall be issuable as registered Notes in the minimum denomination of
$1,000 and in integral multiples of $1,000 in excess thereof, the Class B
Notes shall be issuable as registered Notes in the minimum denomination of
$25,000 and in integral multiples of $1,000 in excess thereof (except
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for one Note of each class which may be issued in a denomination other than
an integral multiple of $1,000).
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 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 NotesSECTION 2.3 Temporary Notes. Pending
the preparation of Definitive Notes, the Issuer may execute, and upon receipt
of an Issuer Order the Trustee shall authenticate and deliver, temporary
Notes which 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 such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive
Notes to be prepared without unreasonable 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
Holder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute and the Trustee 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 Registration; Registration of Transfer and
ExchangeSECTION 2.4 Registration; Registration of Transfer and Exchange.
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 Trustee shall be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. The Note Registrar may
resign as such only upon written notice delivered to an Authorized Officer of
the Issuer, and upon any resignation of any Note Registrar, the Issuer shall
promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and, upon one of its
Authorized Officers receiving written notice thereof, any change in the
location, of the Note Register, and the Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies
thereof, and the 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 Holders of the Notes and the principal
amounts and number of such Notes.
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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
requirements of Section 8-401(1) of the UCC are met the Issuer shall execute and
upon its request the Trustee shall authenticate and the Noteholder shall obtain
from the Trustee, in the name of the designated transferee or transferees, one
or more new Notes, in any authorized denominations, of the same class and a like
aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in
any authorized denominations, of the same class and a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met the Issuer shall execute and upon its
request the Trustee shall authenticate and the Noteholder shall obtain from the
Trustee, the Notes which the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar which requirements include membership or
participation in Securities Transfer Agents Medallion Program ("Stamp") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require.
No service charge shall be made to a Holder 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 transfer.
The preceding provisions of this section 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 15
days preceding the due date for any payment with respect to the Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to the Trustee such security or indemnity as may
be required by it to hold the Issuer and the Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the 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 Trustee shall authenticate and
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deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a replacement Note; provided, however, that if any such destroyed,
lost or stolen Note, but not a mutilated Note, shall have become or within seven
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 payable or upon the Redemption Date without surrender
thereof. 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 purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the 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 Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder 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 Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, 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.
The provisions of this Section 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 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Trustee and any agent
of the Issuer or the 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 neither the Issuer, the Trustee nor any agent of the Issuer or
the Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest as provided in the forms of the Class A-1
Note, the Class A-2 Note, the Class A-3 Note, the Class A-4 Note, the Class A-5
Note and the Class B Note, set forth in Exhibits D, E, F, G, H and I,
respectively, and such interest shall be payable on each Distribution Date as
specified therein. Any installment of interest or principal, if any, payable on
any Note which 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
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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,
except that, unless Definitive Notes have been issued pursuant to Section 2.12,
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 will
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 Distribution Date or on the Final
Scheduled Distribution Date (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1(a)) 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 the Class A-1 Note, the Class
A-2 Note, the Class A-3 Note, the Class A-4 Note, the Class A-5 Note and the
Class B Note, set forth in Exhibits D, E, F, G, H and I, respectively.
Notwithstanding the foregoing, the entire unpaid principal amount of the 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 Trustee or the Holders
of the Class A Notes if Outstanding or the Class B Notes if the Class A Notes
are no longer Outstanding Notes representing not less than 66 2/3% of the
Outstanding Amount of the Class A Notes if Outstanding or the Class B Notes if
the Class A Notes are no longer Outstanding Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. All
principal payments on each class of the Notes shall be made pro rata to the
Noteholders of such class entitled thereto. The 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 will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Distribution
Date and shall specify that such final installment will 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 redemptions 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 Interest Rate in any lawful manner. The Issuer may
pay such defaulted interest to the Persons who are Noteholders on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Issuer shall fix or cause to be fixed any such special
record date and payment date, and, at least 15 days before any such special
record date, the Issuer shall mail to each Noteholder and the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Issuer may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
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delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes may be held or disposed of by the 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 returned to it; provided that such Issuer
Order is timely and the Notes have not been previously disposed of by the
Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, the
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 Section 314(c) and
314(d)(l) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to U.S. Bank National Association, as agent for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Issuer. Such Notes shall initially be registered on the Note Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner will receive a Definitive Note representing such Note Owner's interest in
such Note, except as provided in Section 2.12. Unless and until definitive,
fully registered Notes (the "Definitive Notes") have been issued to Note Owners
pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole
Holder of the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section 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 2.12, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants 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 instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Notes, the Clearing Agency shall be
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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 and has
delivered such instructions to the Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Trustee shall give all such notices and communications specified
herein to be given to Holders of the Notes to the Clearing Agency, and shall
have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (i) the Servicer advises the
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
Servicer is unable to locate a qualified successor, (ii) the Servicer at its
option advises the 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, Note Owners representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Notes advise the Trustee through 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 Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Trustee of the typewritten
Note or Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Trustee shall
recognize the Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Reserved.
ARTICLE III
Covenants
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal of and interest on the Notes in accordance with
the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.2(c), the Issuer will cause to be distributed all amounts
on deposit in the Note Distribution Account on a Distribution Date deposited
therein pursuant to the Sale and Servicing Agreement (i) for the benefit of the
Class A-l Notes, to Class A-1 Noteholders, (ii) for the benefit of the Class A-2
Notes, to Class A-2 Noteholders, (iii) for the benefit of the Class A-3 Notes,
to Class A-3 Noteholders, (iv) for the benefit of the Class A-4 Notes, to Class
A-4 Noteholders, (v) for the benefit of the Class A-5 Notes, to Class A-5
Noteholders and (vi) for the benefit of the Class B Notes, to Class B
Noteholders. Amounts properly withheld under the Code by any Person from
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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 will
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 Trustee to
serve as its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Trustee of the location, and of any change in the
location, 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 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 Trustee as its
agent to receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Sections 8.2(a) and (b), all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection Account
and the Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Trustee or by another Paying Agent, and no amounts
so withdrawn from the Collection Account and the Note Distribution Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section.
At least one Business Day prior to each Distribution Date and
Redemption Date, the Issuer shall deposit or cause to be deposited in the Note
Distribution 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 Paying Agent is the Trustee) shall
promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section, that such Paying Agent
will:
(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 Persons as
herein provided;
(ii) give the Trustee notice of any default by the Issuer of
which it has actual knowledge (or any other obligor upon the Notes) 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 Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent;
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(iv) immediately resign as a Paying Agent and forthwith pay to
the Trustee 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
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
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 Paying Agent to pay to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such a payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by the Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two 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 Holder 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 Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, shall at the expense of
the Issuer cause to be published once, in a newspaper published in the English
language, customarily 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 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Trustee shall also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Trustee or of any Paying Agent,
at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will 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 will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will 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 Collateral and each other
instrument or agreement included in the Trust Estate.
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SECTION 3.5 Protection of Trust Estate. The Issuer will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will 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 protect 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 Trust Estate and the rights
of the Trustee and the Noteholders in such Trust Estate against the
claims of all persons and parties.
The Issuer hereby designates the 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; it being understood that the
Trustee has no duty to determine whether any filing or recording is necessary
hereunder.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date,
the Issuer shall furnish to the 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) Within 120 days after the beginning of each calendar year,
beginning with the first calendar year beginning more than three months after
the Cutoff Date, the Issuer shall furnish to the 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 are 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 will, 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.
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SECTION 3.7 Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will 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 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
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer to assist the Issuer in performing its duties under
this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed 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 Trustee or the Holders of at least a majority
of the Outstanding Amount of the Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Trustee and the Rating Agencies thereof in accordance with
Section 11.4, and shall specify in such notice the action, if any, the Issuer is
taking in respect of such default. If a Servicer Default of which the Issuer
has knowledge 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, the Issuer shall appoint a successor servicer
(the "Successor Servicer"), and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when the Servicer ceases to act as Servicer, the Trustee
without further action shall automatically be appointed the Successor Servicer
in accordance with Section 8.2 of the Sale and Servicing Agreement. The Trustee
may resign as the Servicer by giving written notice of such resignation to the
Issuer and in such event will 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
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Agreement. Any Successor Servicer other than the Trustee shall (i) be an
established financial institution having a net worth of not less than $
50,000,000 and whose regular business includes the servicing of Contracts 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 30 days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a new servicer, the Trustee may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer. In connection with any such appointment, the 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 Trustee). If the 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 Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Trustee in its duties as the successor to the Servicer and the servicing of the
Receivables. In case the Trustee shall become successor to the Servicer under
the Sale and Servicing Agreement, the Trustee shall be entitled to appoint as
Servicer any one of its Affiliates, or delegate any of its responsibilities as
Servicer to agents, subject to the terms of the Sale and Servicing Agreement,
provided that such appointment or delegation shall not affect or alter in any
way the liability of the Trustee as a successor for the performance of the
duties and obligations of the Servicer in accordance with the terms hereof.
(f) Upon an Authorized Officer of the Issuer acquiring actual
knowledge of any termination of the Servicer's rights and powers pursuant to the
Sale and Servicing Agreement, the Issuer shall promptly notify the Trustee. As
soon as a Successor Servicer (other than the Trustee) is appointed, the Issuer
shall notify the 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 Trustee under this Indenture or the rights of the Trustee
hereunder, the Issuer agrees that, unless such action is specifically permitted
hereunder or under the Basic Documents, it will not, without the prior written
consent of the Trustee or the Holders of at least a majority in Outstanding
Amount of the Notes, amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral or the Basic Documents, or waive
timely performance or observance by the Servicer, the Sponsor or the Depositor
under the Sale and Servicing Agreement; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by the Trustee or
such Holders, the Issuer agrees, promptly following a request by the Trustee to
do so, to execute and deliver, in its own name and at its own expense, such
agreements, instruments, consents and other documents as the Trustee may deem
necessary or appropriate in the circumstances.
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SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or the Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the
Trust Estate, unless directed to do so by the Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable 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 any part of the
Trust Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture
to be mpaired, or permit the lien of this Indenture to be amended,
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 Trust Estate 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 a
Financed Vehicle and arising 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 Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will
deliver to the Trustee, within 120 days after the end of each fiscal year of
the Issuer (commencing with the fiscal year 1997), and otherwise in
compliance with the requirements of TIA Section 314(a)(4) an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that
(i) a review of the activities of the Issuer during such year
and of 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 cove
nants under this Indenture throughout such year, or, if there has been
a default in the compliance of 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
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(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any state and shall
expressly assume, by an indenture supplement hereto, executed and
delivered to the Trustee, in form satisfactory to the 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 Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee) to the effect that
such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder or any Certificateholder;
(v) any action as 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 Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental 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).
(b) The Issuer shall not convey or transfer all or substantially all
of its properties or assets, including those included in the Trust Estate, to
any Person, unless
(i) the Person that acquires by conveyance 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 existing under the laws of the United States of
America or any state, (B) expressly assume, by an indenture supplement
hereto, executed and delivered to the Trustee, in form satisfactory to
the 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 agree
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 Holders of the Notes, (D) unless otherwise provided
in such supplemental indenture, expressly agree 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 agree by means of such
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supplemental indenture that such Person (or if a group of persons,
then one specified Person) shall prepare (or cause to be prepared) and
make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee) to the effect that
such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder or any Certificateholder;
(v) any action as 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 Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such convey
ance or transfer and such supplemental 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 or 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 exercise 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), Barnett Auto Trust 1997-A will be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Trustee stating that Barnett Auto Trust
1997-A is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing 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.
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SECTION 3.14 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.9, 4.10, 4.11 and 5.8 of the Sale and
Servicing Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this Indenture,
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 [Reserved]
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (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, (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, distributions
to the Servicer, the Owner Trustee, the Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under, the
Sale and Servicing Agreement or Trust Agreement. The Issuer will not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer agrees to give
the Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Servicer or the Depositor
of its obligations under the Sale and Servicing Agreement of which an Authorized
Officer of the Issuer acquires actual knowledge.
SECTION 3.20 Further Instruments and Acts. Upon request of the
Trustee, the Issuer will execute 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.
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) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of
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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 Trustee hereunder (including the rights of the Trustee
under Section 6.7 and the obligations of the Trustee under Section 4.2) and (vi)
the rights of Noteholders as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
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 destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.5 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 provided in Section 3.3)
have been delivered to the Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at the Final Scheduled
Distribution Date within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Issuer, and the Issuer, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be irrevocably deposited
with the 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 purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation when
due to the Final Scheduled Distribution Date or Redemption Date (if
Notes shall have been called for redemption pursuant 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 by the Issuer; and
(C) the Issuer has delivered to the Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.1(a) and
each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
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SECTION 4.2 Application of Trust Money. All moneys deposited with
the Trustee pursuant to Section 4.1 hereof 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 Paying Agent, as the Trustee may
determine, to the Holders of the particular Notes for the payment or redemption
of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such moneys 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 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Trustee to be held and applied according to Section
3.3 and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 4.4 Notice. Upon the satisfaction and discharge of this
Indenture with respect to the Notes, the Trustee shall notify each Rating Agency
of such satisfaction and discharge.
ARTICLE V
Remedies
SECTION 5.1 Events of Default. "Event of Default," wherever used
herein, means 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 interest on any Note when the
same becomes due and payable, and such default shall continue for a
period of five days; or
(ii) default in the payment of the principal of or any install
ment of the principal of any Note when the same becomes due and
payable; or
(iii) default in the observance or performance of any 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 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 incorrect 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
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misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there
shall have been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% of the Outstanding Amount of the Notes, a written notice
specifying 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 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 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 30
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 appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event of which an Authorized Officer of the Issuer has acquired actual
knowledge which with the giving of notice and the lapse of time would become an
Event of Default under clause (iii), its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If
an Event of Default should occur and be continuing, then and in every such case
the Trustee or the Holders of Class A Notes if Class A Notes are Outstanding or
Class B Notes, if the Class A Notes are no longer Outstanding representing not
less than 66 2/3% of the Outstanding Amount of such Class A Notes or Class B
Notes, as applicable, may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the 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.
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At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article V provided, the Holders
of Notes representing 66 2/3% of the Outstanding Amount of the Notes, by written
notice to the Issuer and the Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Issuer has paid or deposited with the 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 acceleration had not
occurred; and
(B) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, 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
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 days, 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 will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of the Notes, 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 borne by the Notes and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the 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 moneys adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Trustee
may, as more particularly 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 Trustee shall deem most effective to protect
and enforce any such rights, whether for the specific enforcement of any
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covenant or agreement in this Indenture 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 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 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 possession 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 Trustee, irrespective 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 Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, 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 Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence, bad faith or willful misconduct) and of the
Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of
the 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
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
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(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent 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 Holder thereof or to authorize the
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 person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the 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 Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit, as provided herein, of
the Holders of the Notes.
(g) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Notes, 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 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 moneys adjudged
due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the
rights and remedies of the Trustee and the Holders of the Notes; and
(iv) sell the 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 Trustee may not sell or other-wise liquidate
the Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless (A) the Holders of 100%
of the Outstanding Amount of the Notes consent thereto, (B) the proceeds of
such sale or liquidation distributable to the Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for
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principal and interest or (C) the Trustee determines that the 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 Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount of the Notes. In determining
such sufficiency or insufficiency with respect to clause (B) and (C), the
Trustee may, but need not, obtain and rely upon an opinion of an Independ
ent investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
(b) If the Trustee collects any money or property pursuant to this
Article V, it shall pay out such money or property (and other amounts including
amounts held on deposit in the Reserve Account) held as Collateral for the
benefit of the Noteholders in the following order:
FIRST: to the Trustee for amounts due under Section 6.7;
SECOND: to Class A Noteholders for amounts due and unpaid on the
Class A Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class A Notes for
interest;
THIRD: to Class A Noteholders for amounts due and unpaid on the
Class A Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
until the Outstanding Amount of each class of Class A Notes is reduced to
zero;
FOURTH: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class B Notes for
interest;
FIFTH: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
until the Outstanding Amount of the Class B Notes is reduced to zero;
SIXTH: to the Issuer for distribution to the Certificateholders.
The Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section. At least 15 days before such record
date, the Issuer shall mail to each Noteholder and the 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 Trustee may, but need not, elect to maintain possession of the
Trust Estate. 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 Trustee shall take such desire into account when
determining
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whether or not to maintain possession of the Trust Estate. In determining
whether to maintain possession of the Trust Estate, the 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 Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Trustee to institute
such proceeding in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
proceedings; and
(v) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes 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 Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Notes, the
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such 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 enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
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SECTION 5.8 Restoration of Rights and Remedies. If the Trustee or
any Noteholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such
Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the 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 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 employment 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 Trustee or any Holder of any Note 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 Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of
the Outstanding Amount of the Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Notes or exercising any trust or power conferred
on the Trustee; provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Trustee to sell or liquidate the Trust Estate shall be by the
Holders of Notes representing not less than 100% of the Outstanding
Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the trustee by Holders of
Notes representing less than 100% of the Outstanding Amount of the
Notes to sell or liquidate the Trust Estate shall be of no force and
effect; and
(iv) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction;
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provided, however, that, subject to Section 6.1, the Trustee need
not take any action that it determines might involve it in liability
or might materially adversely affect the rights of any Noteholders
not consenting 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
Holders of Class A Notes, if any Class A Notes are outstanding or Class B
Notes if the Class A Notes are no longer outstanding of not less than 66 2/3%
of the Outstanding Amount of the Class A Notes or Class B Notes, as
applicable may waive any past Default or Event of Default and its
consequences except a Default (a) in payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Issuer, the Trustee and the Holders of
the Notes 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
occurred, 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 Holder of any Note by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by
it as 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
discretion 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 shall not apply to (a) any suit instituted by the
Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders,
in each case holding in the aggregate more than 10% of the Outstanding Amount
of the Notes 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 will 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 will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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SECTION 5.15 Action on Notes. The 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 Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Trustee against the Issuer or by the levy of
any execution under such judgment upon any portion of the Trust Estate or
upon any of the assets of the Issuer.
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a written request from the Trustee to do so and at
the Servicer's expense, the Issuer agrees to take all such lawful action as
the Trustee may request to compel or secure the performance and observance by
the Depositor, the Sponsor and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement in accordance with the terms thereof, 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 Trustee, including the transmission of
notices of default on the part of the Depositor or the Servicer thereunder
and the institution of legal or administrative actions or proceedings to
compel or secure performance by the Depositor or the Servicer of each of
their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of
66-2/3% of the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Depositor
or the Servicer under or in connection with the Sale and Servicing Agreement,
including the right or power to take any action to compel or secure
performance or observance by the Depositor or the Servicer of each of their
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.
ARTICLE VI
The Trustee
SECTION 6.1 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the 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 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
Trustee; and
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(ii) in the absence of bad faith on its part, the 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 Trustee and conforming to the requirements
of this Indenture; however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The 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;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the 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 Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the 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 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 liability
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 Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 6.2 Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
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(c) The 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 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 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 the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection 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 Trustee. The 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 Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults; Notice of Event of Default. (a) If
a Default occurs and is continuing and if it is either actually known or
written notice of the existence thereof has been delivered to a Responsible
Officer of the Trustee, the Trustee shall mail to each Noteholder and the
Owner Trustee notice of the Default within 90 days after such knowledge or
notice 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 Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
(b) Within 5 Business Days of an Event of Default, the Trustee
shall deliver notice thereof to the Rating Agencies.
SECTION 6.6 Reports by Trustee to Holders. The Trustee shall
deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its Federal and state income tax returns.
SECTION 6.7 Compensation and Indemnity. The Issuer shall or shall
cause the Servicer to pay to the Trustee from time to time compensation for
its services in accordance with
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a separate agreement between the Servicer and the Trustee. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall or shall cause the Servicer to reimburse
the 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 Trustee's agents, counsel,
accountants and experts. The Issuer shall or shall cause the Servicer to
indemnify the Trustee and its officers, directors, employees and agents
against any and all loss, liability or expense (including attorneys' fees and
expenses) incurred by it in connection with the acceptance or the
administration of this trust and the performance of its duties hereunder.
The Trustee shall notify the Issuer and the Servicer promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the
Issuer and the Servicer shall not relieve the Issuer of its obligations
hereunder or the Servicer of its obligations under Article X of the Sale and
Servicing Agreement. The Issuer shall or shall cause the Servicer to defend
the claim and the Trustee may have separate counsel and the Issuer shall or
shall cause the Servicer to pay the fees and expenses of such counsel.
Neither the Issuer nor the Servicer need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture and the resignation or
removal of the Trustee subject to a satisfaction of the Rating Agency
Condition. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 5.1(iv) or (v) with respect to the Issuer, the
expenses are intended to constitute 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 Trustee. The Trustee may resign at any
time by so notifying the Issuer. The Holders of a majority in Outstanding
Amount of the Notes may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Issuer shall remove the Trustee if:
(i) the Trustee fails to comply with Section 6.11;
(ii) the Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of
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the Trustee under this Indenture subject to satisfaction of the Rating Agency
Condition. The successor Trustee shall mail a notice of its succession to
Noteholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or
the Holders of a majority in Outstanding Amount of the Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 6.8 and payment of all fees and expenses owed to the
outgoing Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's and the Servicer's obligations under Section 6.7 shall
continue for the benefit of the retiring Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee. The Trustee shall provide the
Rating Agencies with prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but
not delivered, any such successor to the 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 Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and 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 Trustee shall have.
SECTION 6.10 Appointment of CoTrustee or Separate Trustee. (a)
Notwithstanding 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 Trust may at the time be located, the Trustee shall have the
power and may execute and deliver all instruments 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 Trust, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be
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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 obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including
acts or omissions of predecessor or successor trustees; and
(iii) the 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 Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article 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 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 Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall invest in and
be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in
its most recent published annual report of condition and it shall
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have a long term debt rating of BBB- by Standard & Poor's and Baa3 by Moody's
or better by the Rating Agencies. The Trustee shall comply with TIA Section
310 (b), including the optional provision permitted by the second sentence of
TIA Section 310(b)(9); provided, however, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities of the Issuer are outstanding if the requirements for
such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Trustee
(a) not more than five days after the earlier of (i) each Record Date and
(ii) three months after the last Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as
of such Record Date, (b) at such other times as the Trustee may request in
writing, within 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 10 days prior to
the time such list is furnished; provided, however, that so long as the
Trustee is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1 and
the names and addresses of Holders received by the Trustee in its capacity as
Note Registrar. The Trustee may destroy any list furnished to it as provided
in such Section 7.1 upon receipt of a new list so furnished.
(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.
(c) The Issuer, the Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
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SECTION 7.3 Reports by Issuer. (a) The Issuer shall:
(i) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the
annual reports and of the information, 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) which 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 Trustee and the Commission in accordance with rules
and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Trustee (and the Trustee shall transmit by mail
to all Noteholders described in TIA Section 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) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
SECTION 7.4 Reports by Trustee. If required by TIA Section
313(a), within 60 days after each September 1, beginning with September 1,
1998, the 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 Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders
shall be filed by the Trustee with the Commission, if required by the
Exchange Act, and each stock exchange, if any, on which the Notes are listed.
The Issuer shall notify the Trustee if and when the Notes are listed on any
stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to
or receivable by the Trustee pursuant to this Indenture. The Trustee shall
apply all such money received by it as provided in this Indenture. Except as
otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that
is part of the Trust Estate, the Trustee may
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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 Default or Event of Default under this Indenture and any right to
proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date,
the Issuer shall cause the Servicer to establish and maintain, in the name of
the Trustee, for the benefit of the Noteholders and the Certificateholders,
the Trust Accounts as provided in Section 5.1 of the Sale and Servicing
Agreement.
(b) On or before each Distribution Date, the Total Distribution
Amount with respect to the preceding Collection Period will be deposited in
the Collection Account as provided in Section 5.2 of the Sale and Servicing
Agreement. On or before each Distribution Date, the Class A Noteholders'
Distributable Amount and the Class B Noteholders' Distributable Amount with
respect to the preceding Collection Period will be transferred from the
Collection Account and/or the Reserve Account to the Note Distribution
Account as provided in Sections 5.5 and 5.6 of the Sale and Servicing
Agreement.
(c) On each Distribution Date and Redemption Date, the Trustee
shall distribute all amounts on deposit in the Note Distribution Account to
Noteholders in respect of the Notes to the extent of amounts due and unpaid
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) accrued and unpaid interest on the Class A Notes; provided
that if there are not sufficient funds in the Note Distribution
Account to pay the entire amount of accrued and unpaid interest then
due on the Class A Notes, the amount in the Note Distribution
Account shall be applied to the payment of such interest on the
Class A Notes pro rata on the basis of the total such interest due
on the Class A Notes;
(ii) accrued and unpaid interest on the Class B Notes; provided
that if there are not sufficient funds in the Note Distribution
Account to pay the entire amount of accrued and unpaid interest then
due on the Class B Notes after the distribution pursuant to clause
(i) above, the amount in the Note Distribution Account shall be
applied to the payment of such interest on the Class B Notes pro
rata on the basis of the total such interest due on the Class B
Notes;
(iii) to the Holders of the Class A-1 Notes until the
Outstanding Amount of the Class A-1 Notes is reduced to zero;
(iv) to the Holders of the Class A-2 Notes until the
Outstanding Amount of the Class A-2 Notes is reduced to zero;
(v) to the Holders of the Class A-3 Notes until the
Outstanding Amount of the Class A-3 Notes is reduced to zero;
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(vi) to the Holders of the Class A-4 Notes until the
Outstanding Amount of the Class A-4 Notes is reduced to zero;
(vi) to the Holders of the Class A-5 Notes until the
Outstanding Amount of the Class A-5 Notes is reduced to zero; and
(vii) to the Holders of the Class B Notes until the
Outstanding Amount of the Class B Notes is reduced to zero
Notwithstanding the foregoing, if an Event of Default exists, no
amounts shall be paid to Class B Noteholders until the accrued and unpaid
interest on the Class A Notes and Outstanding Amount of each class of Class A
Notes has been reduced to zero.
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 Trust Accounts shall be invested in Eligible
Investments and reinvested by the Trustee upon Issuer Order, subject to the
provisions of Section 5.1(b) of the Sale and Servicing Agreement. All income
or other gain from investments of moneys deposited in the Trust Accounts
(other than the Payahead Account) shall be deposited (or caused to be
deposited) by the Trustee in the Collection Account, and any loss resulting
from such investments shall be charged to such account. All income or other
gain from investments of monies deposited in the Payahead Account shall be
released by the Trustee to the Depositor, net of any loss resulting from such
investments charged to the Payahead Account. The Issuer will not direct the
Trustee to make any investment of any funds or to sell any investment held in
any of the Trust Accounts 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 direction to the Trustee to make any such
investment or sale, if requested by the Trustee, the Issuer shall deliver to
the Trustee an Opinion of Counsel, acceptable to the Trustee, to such effect.
(b) [Reserved]
(c) Subject to Section 6.1(c), the Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except
for losses attributable to the Trustee's failure to make payments on such
Eligible Investments issued by the Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(d) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Trustee by
11:00 a.m. Eastern Time (or such other time as may be agreed by the Issuer
and Trustee) on any Business Day; or (ii) 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 but amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.5 as if there had not been
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such a declaration; then the Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in one or more
investments under clause (a) of the definition of Eligible Investments.
SECTION 8.4 Release of Trust Estate. (a) Subject to Article VI
hereunder, the Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of
this Indenture, or convey the Trustee's interest in the same, in a manner and
under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Trustee as
provided in this Article VIII shall be bound to ascertain the Trustee's
authority, inquire into the satisfaction of any conditions precedent or see
to the application of any moneys.
(b) The Trustee shall, at such time as there are no Notes
outstanding and all sums due the Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the 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
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 Section 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Trustee shall receive at least
seven days' notice when requested by the Issuer to take any action pursuant
to Section 8.4(a), accompanied by copies of any instruments involved, and the
Trustee shall also require as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the 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 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 Trustee in connection with
any such action.
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ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies by the Issuer, as evidenced to the Trustee, the Issuer
and the 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 Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Trustee any property subject or required
to be subjected to the lien of this Indenture, or to subject to the
lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Holders of the Notes;
(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 facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
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The Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies by the Issuer, as evidenced to the
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 of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder; provided,
further, that any amendment within the scope of Section 9.2 (i)-(vii) shall
be deemed to materially and adversely affect the interests of the
Noteholders, as evidenced by an Officer's Certificate of the Servicer
delivered to the Trustee.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.
The Issuer and the Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders
of not less than a majority of the outstanding Amount of the Notes, of all
classes of Notes that would be adversely affected thereby or the related
class or classes that would be adversely affected thereby, by Act of such
Holders delivered to the Issuer and the 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 of modifying in any manner the rights of the Holders of the
Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment 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 provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
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 Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
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(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents
cannot be modified or waived without the consent of the Holder 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 calculation) or to affect the rights of the Holders of Notes to
the benefit of any provisions for the mandatory redemption of the
Notes contained 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 Trust Estate or, except as otherwise permitted or
contemplated herein or in the Basic Documents, terminate the lien of
this Indenture on any property at any time subject hereto or deprive
the Holder of any Note of the security provided by the lien of this
Indenture.
The Trustee may determine whether or not any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The 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 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to
the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the 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 Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, the 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
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permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
The Trustee shall provide copies of each such supplemental indenture to each
of the Rating Agencies.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions 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 supplemental 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 Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Trustee shall, bear a
notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption. (a) The Notes are subject to redemption
in whole, but not in part, (i) at the direction of the Depositor pursuant to
Section 9.1(a) of the Sale and Servicing Agreement, on any Distribution Date
on which the Depositor exercises its option to purchase the Trust Estate
pursuant to said Section 9.1(a) and (ii) upon the mandatory sale of the
Receivables pursuant to Section 9.2 of the Sale and Servicing Agreement. The
purchase price for the Notes shall be equal to the Redemption Price;
provided, however, that the Issuer has available funds sufficient to pay the
Redemption Price. The Servicer shall furnish the Rating Agencies notice of
such redemption. If the Notes are to be redeemed pursuant to this Section
10.1(a) (i) or (ii), the Servicer shall furnish notice to the Trustee not
later than 25 days prior to the Redemption Date and the Issuer shall deposit
with the Trustee in the Note Distribution Account, on or before the
Redemption Date, the Redemption Price of the Notes to be redeemed whereupon
all such Notes shall be due and payable on the Redemption Date upon the
furnishing of a notice complying with Section 10.2 to each Holder of the
Notes.
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(b) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the Noteholders up to the Outstanding
Amount of the Notes and all accrued and unpaid interest thereon. If amounts
are to be paid to Noteholders pursuant to this Section 10.1(b), the Servicer
shall, to the extent practicable, furnish notice of such event to the Trustee
not later than 25 days prior to the Redemption Date whereupon all such
amounts shall be payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by the Trustee by facsimile or by
first-class mail, postage prepaid, transmitted or mailed not less than five
days in the case of Section 10.1(a)(i) and Section 10.1(a)(ii) prior to the
applicable Redemption Date to each Holder of Notes, as of the close of
business on the Record Date preceding the applicable Redemption Date, at such
Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made
only upon presentation and surrender of such Notes and 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); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by the Trustee in
the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair
or affect the validity of the redemption of any other Note.
(b) Prior notice of redemption under Sections 10.1(b) is not
required to be given to Noteholders.
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)), 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 calculating the Redemption Price.
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ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc.. (a) Upon
any application or request by the Issuer to the Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the
Trustee (i) an Officer's Certificate 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 Counsel 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, 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 additional 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:
(i) 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;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination 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
(iv) 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 Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as
to the fair value (within 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 Trustee
an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the
Issuer shall also deliver to the Trustee an Independent 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 securities made
the basis of any
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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 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as
set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Purchased Receivables or Liquidated Receivables, whenever any
property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 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 impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Trustee
an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above,
the Issuer shall also furnish to the Trustee an Independent
Certificate as to the same matters if the fair value of the property
or securities and of all other property other than Purchased
Receivables and Defaulted Receivables, or securities 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 10% or more of the
Outstanding Amount of the Notes, 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 of the
then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
SECTION 11.2 Form of Documents Delivered to Trustee. In any case
where several matters 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.
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<PAGE>
Any certificate or opinion of an Authorized 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 his or her
certificate or opinion is based are erroneous. Any such certificate 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 Depositor or the Issuer, stating
that the information with respect to such factual matters is in the
possession of the Servicer, the Depositor or the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the 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 compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
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 application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the 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, consent, 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 delivered to the Trustee, and, where
it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein 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 Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of the Trustee.
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(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder 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 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 Trustee, Issuer and Rating Agencies.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) The Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and
shall be deemed to have been duly given upon receipt to the Trustee at its
Corporate Trust Office, or
(b) The Issuer by the Trustee or by any Noteholder shall be in
writing and sufficient for every purpose hereunder if personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested and shall be deemed to have been duly given upon receipt to the
Issuer addressed to: Barnett Auto Trust 1997-A, in care of the Owner
Trustee, Attention: Corporate Trust Administration at the address of the
Owner Trustee's Corporate Trust Office set forth in the Trust Agreement or at
any other address previously furnished in writing to the Trustee by Issuer.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Trustee or the Owner Trustee shall be in writing, personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested to (i) in the case of Moody's, at the following address: Moody's
Investors Service, Inc., 99 Church Street, New York, New York 10004,
Attention: ABS Monitoring Department and (ii) in the case of S&P, at the
following address: Standard & Poor's Ratings Group, 26 Broadway (15th
Floor), New York, New York 10004, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid 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, neither 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 here in provided shall conclusively be presumed to have been duly
given.
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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 equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage 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 Trustee shall be
deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, 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 Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Trustee or any Paying
Agent to such Holder, that is different from the methods provided for in this
Indenture for such payments or notices, provided that such methods are
reasonable and consented to by the Trustee (which consent shall not be
unreasonably withheld). The Issuer will furnish to the Trustee a copy of
each such agreement and the Trustee will 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 conflicts 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 Section 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained 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 Trustee in this
Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
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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 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 an which nominally due, and no
interest shall accrue 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, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee or any other counsel reasonably
acceptable to the 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
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 Depositor,
the Servicer, the Owner Trustee or the Trustee on the Notes or under this
Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Depositor, the Servicer, the 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 Depositor, the Servicer,
the Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Depositor, the Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the Depositor, the
Servicer, the Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
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
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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 Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Depositor or the
Issuer, or join in any institution against the Depositor or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the 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, finances 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
requested. The Trustee shall and shall cause its representatives to hold in
confidence all such information 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 Trustee may reasonably
determine that such disclosure is consistent with its Obligations hereunder.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee,
By:_____________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By:_____________________________
Name:
Title:
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[Form of Class A-1 Note] EXHIBIT D
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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.
D-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS A-1__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class A-l Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the October 1998 Distribution Date (the "Class A-1
Note Final Scheduled Distribution Date") and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture.
The Issuer will pay interest on this Class A-1 Note at the rate per annum
shown above on each Distribution Date commencing in October 1997 until the
principal of this Class A-1 Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution
Date (after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution
Date from the most recent Distribution Date on which interest has been paid
to but excluding such Distribution Date or, if no interest has yet been
paid, from September 15, 1997. Interest will be computed on the basis the
actual number of days in a 360-day year. Such principal of and interest on
this Class A-1 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class A-1 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A-1 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.
D-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement,
By:________________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: ____________________________________________
Authorized Signatory
D-3
<PAGE>
[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 (herein called the "Class
A-1 Notes"), all issued under an Indenture dated as of September 1, 1997
(such indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as
trustee (the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Class A-1 Notes. The Class A-1 Notes are subject to all terms of the
Indenture. All terms used in this Class A-1 Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
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 fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class A-1 Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
A Notes 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 Class A-1 Noteholders
entitled thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
D-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments 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,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the 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 or employee of the Depositor, the Servicer, the
D-5
<PAGE>
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Depositor, the Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the Depositor, the
Servicer, the Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
D-6
<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
D-7
<PAGE>
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: ___________ _______________________(3)
Signature Guaranteed:
(3) NOTE: 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 whatsoever.
D-8
<PAGE>
EXHIBIT E
[Form of Class A-2 Note]
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
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.
E-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS A-2__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class A-2 Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable
on the earlier of the July 2000 Distribution Date (the "Class A-2 Note Final
Scheduled Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture. The Issuer
will pay interest on this Class A-2 Note at the rate per annum shown above on
each Distribution Date commencing in October 1997 until the principal of this
Class A-2 Note is paid or made available for payment, on the principal amount
of this Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date).
Interest on this Note will accrue for each Distribution Date from the most
recent Distribution Date on which interest has been paid to but excluding
such Distribution Date or, if no interest has yet been paid, from September
15, 1997. Interest will be computed on the basis of a 360-day year of twelve
30 day months. Such principal of and interest on this Class A-2 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class A-2 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A-2 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.
E-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee under
the Trust Agreement,
By:_______________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: _________________________
Authorized Signatory
E-3
<PAGE>
[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 (herein called the "Class
A-2 Notes"), all issued under an Indenture dated as of September 1, 1997
(such indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as
trustee (the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Class A-2 Notes. The Class A-2 Notes are subject to all terms of the
Indenture. All terms used in this Class A-2 Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
Principal of the Class A-2 Notes will be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class A-2 Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
A Notes 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 Class A-2 Noteholders
entitled thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
E-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in whole,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the
E-5
<PAGE>
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 or employee of the Depositor, the Servicer, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Depositor, the Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the Depositor, the
Servicer, the Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
E-6
<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
E-7
<PAGE>
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: ___________ _______________________(4)
Signature Guaranteed:
- - - --------------------
(4) NOTE: 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 whatsoever.
E-8
<PAGE>
EXHIBIT F
[Form of Class A-3 Note]
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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.
F-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS A-3__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class A-3 Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable
on the earlier of the November 2001 Distribution Date (the "Class A-3 Note
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture. The
Issuer will pay interest on this Class A-3 Note at the rate per annum shown
above on each Distribution Date commencing in October 1997 until the
principal of this Class A-3 Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution
Date (after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution
Date from the most recent Distribution Date on which interest has been paid
to but excluding such Distribution Date or, if no interest has yet been paid,
from September 15, 1997. Interest will be computed on the basis of a 360-day
year of twelve 30 day months. Such principal of and interest on this Class
A-3 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class A-3 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been executed
by the Trustee whose name appears below by manual signature, this Class A-3
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.
F-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement,
By:_______________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: _________________________
Authorized Signatory
F-3
<PAGE>
[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 (herein called the "Class
A-3 Notes"), all issued under an Indenture dated as of September 1, 1997
(such indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as
trustee (the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Class A-3 Notes. The Class A-3 Notes are subject to all terms of the
Indenture. All terms used in this Class A-3 Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-31 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
Principal of the Class A-3 Notes will be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class A-3 Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
A Notes 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 Class A-3 Noteholders
entitled thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
F-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in whole,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the
F-5
<PAGE>
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 or employee of the Depositor, the Servicer, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Depositor, the Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the Depositor, the
Servicer, the Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
F-6
<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
F-7
<PAGE>
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: ___________ _______________________(5)
Signature Guaranteed:
________________
(5) NOTE: 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 whatsoever.
F-8
<PAGE>
EXHIBIT G
[Form of Class A-4 Note]
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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.
G-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS A-4__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class A-4 Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable
on the earlier of the September 2002 Distribution Date (the "Class A-4 Note
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture. The
Issuer will pay interest on this Class A-4 Note at the rate per annum shown
above on each Distribution Date commencing in October 1997 until the
principal of this Class A-4 Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution
Date (after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution
Date from the most recent Distribution Date on which interest has been paid
to but excluding such Distribution Date or, if no interest has yet been paid,
from September 15, 1997. Interest will be computed on the basis of a 360-day
year of twelve 30 day months. Such principal of and interest on this Class
A-4 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class A-4 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A-4 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.
G-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as
Owner Trustee under the Trust Agreement,
By:_______________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: _________________________
Authorized Signatory
G-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-4 __% Asset Backed Notes (herein called the "Class
A-4 Notes"), all issued under an Indenture dated as of September 1, 1997
(such indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as
trustee (the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Class A-4 Notes. The Class A-4 Notes are subject to all terms of the
Indenture. All terms used in this Class A-4 Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
Principal of the Class A-4 Notes will be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class A-4 Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
A Notes 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-4 Notes shall be made pro rata to the Class A-4 Noteholders
entitled thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
G-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in whole,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the
G-5
<PAGE>
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 or employee of the Depositor, the Servicer, the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Depositor, the Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the Depositor, the
Servicer, the Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
G-6
<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
G-7
<PAGE>
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: ___________ _______________________(6)
Signature Guaranteed:
_________________
(6) NOTE: 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 whatsoever.
G-8
<PAGE>
EXHIBIT H
[Form of Class A-5 Note]
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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.
H-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS A-5__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class A-5 Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable
on the earlier of the February 2003 Distribution Date (the "Class A-5 Note
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture. The
Issuer will pay interest on this Class A-5 Note at the rate per annum shown
above on each Distribution Date commencing in October 1997 until the
principal of this Class A-5 Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution
Date (after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution
Date from the most recent Distribution Date on which interest has been paid
to but excluding such Distribution Date or, if no interest has yet been paid,
from September 15, 1997. Interest will be computed on the basis of a 360-day
year of twelve 30 day months. Such principal of and interest on this Class
A-5 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class A-5 Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-5 Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class A-5 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.
H-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee under
the Trust Agreement,
By:_______________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: _________________________
Authorized Signatory
H-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-5 __% Asset Backed Notes (herein called the "Class
A-5 Notes"), all issued under an Indenture dated as of September 1, 1997
(such indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as
trustee (the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Class A-5 Notes. The Class A-5 Notes are subject to all terms of the
Indenture. All terms used in this Class A-5 Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
Principal of the Class A-5 Notes will be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class A-5 Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
A Notes 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-5 Notes shall be made pro rata to the Class A-5 Noteholders
entitled thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
H-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-5 Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in whole,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the 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 or employee of the Depositor, the Servicer, the Trustee or
the Owner Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Depositor, the Servicer, the Owner Trustee or the
Trustee or of any successor or assign of the Depositor, the Servicer, the
H-5
<PAGE>
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the 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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
H-6
<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
H-7
<PAGE>
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: ___________ _______________________(7)
Signature Guaranteed:
___________________________
(7) NOTE: 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 whatsoever.
H-8
<PAGE>
EXHIBIT I
[Form of Class B Note]
REGISTERED $
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______________
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION 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 REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
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.
I-1
<PAGE>
BARNETT AUTO TRUST 1997-A
CLASS B__% ASSET BACKED NOTES
Barnett Auto Trust 1997-A, a business 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 Distribution 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
denominator of which is $___________ by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the
Class B Notes pursuant to Section 3.1 of the Indenture; provided, however,
that the entire unpaid principal amount of this Note shall be due and payable
on the earlier of the January 2005 Distribution Date (the "Class B Note Final
Scheduled Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) (i) or (ii) or Section 10.1(b) of the Indenture. The Issuer
will pay interest on this Class B Note at the rate per annum shown above on each
Distribution Date commencing in October 1997 until the principal of this
Class \B Note is paid or made available for payment, on the principal amount of
this Note outstanding on the preceding Distribution Date (after giving effect
to all payments of principal made on the preceding Distribution Date). Interest
on this Note will accrue for each Distribution Date from the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, if no interest has yet been paid, from September 15, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30 day
months. Such principal of and interest on this Class B 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 provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Class B Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Class B 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.
I-2
<PAGE>
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: BARNETT AUTO TRUST 1997-A,
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee under
the Trust Agreement,
By:_______________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B __% Asset Backed Notes of Barnett Auto
Trust 1997-A designated above and referred to in the within-mentioned
Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee,
By: _________________________
Authorized Signatory
I-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class B __% Asset Backed Notes (herein called the "Class B
Notes"), all issued under an Indenture dated as of September 1, 1997 (such
indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of
the Issuer, the Trustee and the Holders of the Class B Notes. The Class B
Notes are subject to all terms of the Indenture. All terms used in this
Class B Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as
so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-5 Notes (together, the "Class A Notes") are
and will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture. The Class B Notes (and together with
the Class A Notes, the "Notes") are and will be equally and ratably secured
by the collateral pledged or security thereof as provided in the Indenture on
a subordinate basis.
Principal of the Class B Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means
the fifteenth day of each month, or, if any such date is not a Business Day,
the next succeeding Business Day, commencing October 1997
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Scheduled Distribution
Date with respect to the Class B Notes and the Redemption Date, if any,
pursuant to Section 10.1(a) (i) or (ii) or Section 10.1(b) 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 Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Class
B Notes 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 B Notes shall be made pro rata to the Class B Noteholders entitled
thereto.
Payments of interest on this Note due and payable 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 Holder of this 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.), payments will be made by wire transfer in immediately
available funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereto 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
I-4
<PAGE>
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 Holders 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 Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed prior to such Distribution Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Trustee's principal Corporate Trust Office or
at the office of the Trustee's agent appointed for such purposes located in
the City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed in whole,
but not in part, (i) at the option of the Servicer, on any Distribution Date
on or after the date on which the Pool Balance is less than 5% percent of the
Initial Pool Balance or (ii) if the Servicer has not exercised its rights in
clause (i) within 90 days after the last day of a Collection Period as of
which such right can first be exercised, an auction sale shall be conducted
(as described in the Sale and Servicing 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, (i) duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar which requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Trustee may
require, and thereupon one or more new Notes of authorized denominations and
in the same aggregate principal 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 sufficient 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 acceptance of a Note or, in the
case of a Note Owner, a beneficial 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 Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Depositor, the Servicer, the 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 or employee of the Depositor, the Servicer, the Trustee or
the Owner Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Depositor, the Servicer, the Owner Trustee or the
Trustee or of any successor or assign of the Depositor, the Servicer, the
I-5
<PAGE>
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the 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.
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
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Notes, the Indenture
or the Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
neither the Issuer, the Trustee nor 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 modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all affected Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of Notes representing specified percentages of the Outstanding Amount of the
Class A Notes, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Holder and upon all future Holders
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
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes 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 Trustee
and the Holders of Notes 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.
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<PAGE>
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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 notwithstanding, except as expressly
provided in the Indenture or the Basic Documents, neither The Bank of New
York in its individual capacity, U.S. Bank National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, 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 of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee for the sole purposes of
binding the interests of the Owner Trustee in the assets of the Issuer. The
Holder of this Note by the acceptance hereof agrees that except as expressly
provided in the Indenture or the Basic Documents, in the case of an Event of
Default under the Indenture, the Holder 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.
I-7
<PAGE>
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: ___________ _______________________(8)
Signature Guaranteed:
__________________________
(8) NOTE: 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 whatsoever.
I-8
<PAGE>
EXHIBIT 4.3
- - - ----------------------------------------------------------------------------
BARNETT AUTO TRUST 1997-A
TRUST AGREEMENT
between
BARNETT AUTO RECEIVABLES CORP.
and
THE BANK OF NEW YORK
Dated as of September 1, 1997
- - - ----------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
------
ARTICLE I--DEFINITIONS
SECTION 1.1. CAPITALIZED TERMS...................................... 1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.......................... 3
ARTICLE II--ORGANIZATION
SECTION 2.1. NAME................................................... 4
SECTION 2.2. OFFICE................................................. 4
SECTION 2.3. PURPOSES AND POWERS.................................... 4
SECTION 2.4. APPOINTMENT OF OWNER TRUSTEE........................... 5
SECTION 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE........... 5
SECTION 2.6. DECLARATION OF TRUST................................... 5
SECTION 2.7. LIABILITY OF THE DEPOSITOR............................. 5
SECTION 2.8. TITLE TO TRUST PROPERTY................................ 6
SECTION 2.9. SITUS OF TRUST......................................... 6
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR........ 6
SECTION 2.11. [RESERVED]............................................. 7
SECTION 2.12. FEDERAL INCOME TAX ALLOCATIONS......................... 7
ARTICLE III--TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. INITIAL OWNERSHIP...................................... 7
SECTION 3.2. THE TRUST CERTIFICATES................................. 7
SECTION 3.3. AUTHENTICATION OF TRUST CERTIFICATES................... 8
SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES........................................... 8
SECTION 3.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
CERTIFICATES........................................... 8
SECTION 3.6. PERSONS DEEMED CERTIFICATEHOLDERS...................... 9
SECTION 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES.............................................. 9
SECTION 3.8. MAINTENANCE OF OFFICE OR AGENCY........................ 10
SECTION 3.9. APPOINTMENT OF PAYING AGENT............................ 10
SECTION 3.10. [RESERVED]............................................. 11
SECTION 3.11. [RESERVED]............................................. 11
SECTION 3.12. [RESERVED]............................................. 11
SECTION 3.13. [RESERVED]............................................. 11
SECTION 3.14. [RESERVED]............................................. 11
SECTION 3.15. [RESERVED]............................................. 11
SECTION 3.16. [RESERVED]............................................. 11
SECTION 3.17. TRUST CERTIFICATE TRANSFER RESTRICTIONS................ 11
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<PAGE>
ARTICLE IV--ACTIONS BY OWNER TRUSTEE
SECTION 4.1. PRIOR NOTICE TO OWNERS WITH RESPECT TO CERTAIN
MATTERS................................................ 13
SECTION 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS................................................ 13
SECTION 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY............................................. 13
SECTION 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER.............. 14
SECTION 4.5. MAJORITY CONTROL....................................... 14
SECTION 4.6. EXECUTION OF DOCUMENTS................................. 14
ARTICLE V--APPLICATION OF TRUST FUNDS: CERTAIN DUTIES
SECTION 5.1. [RESERVED]............................................. 15
SECTION 5.2. DISTRIBUTIONS TO CERTIFICATEHOLDERS.................... 15
SECTION 5.3. [RESERVED]............................................. 15
SECTION 5.4. METHOD OF PAYMENT...................................... 15
SECTION 5.5. NO SEGREGATION OF MONIES; NO INTEREST.................. 16
SECTION 5.6. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND
OTHERS................................................. 16
SECTION 5.7. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.............. 16
ARTICLE VI--AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. GENERAL AUTHORITY...................................... 17
SECTION 6.2. ACTION UPON INSTRUCTION................................ 17
SECTION 6.3. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS........................................... 18
SECTION 6.4. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS........................................... 19
SECTION 6.5. RESTRICTIONS........................................... 19
SECTION 6.6. NOTICE OF DEFAULT UNDER INDENTURE...................... 19
ARTICLE VII--CONCERNING THE OWNER TRUSTEE
SECTION 7.1. ACCEPTANCE OF TRUSTS AND DUTIES........................ 19
SECTION 7.2. FURNISHING OF DOCUMENTS................................ 21
SECTION 7.3. REPRESENTATIONS AND WARRANTIES......................... 21
SECTION 7.4. RELIANCE; ADVICE OF COUNSEL............................ 21
SECTION 7.5. NOT ACTING IN INDIVIDUAL CAPACITY...................... 22
SECTION 7.6. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR
RECEIVABLES............................................ 22
SECTION 7.7. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES..... 22
ARTICLE VIII--COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. OWNER TRUSTEE'S FEES AND EXPENSES...................... 23
SECTION 8.2. INDEMNIFICATION........................................ 23
SECTION 8.3. PAYMENTS TO THE OWNER TRUSTEE.......................... 23
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<PAGE>
ARTICLE IX--DISSOLUTION AND TERMINATION OF TRUST
SECTION 9.1. TERMINATION OF TRUST AGREEMENT........................ 23
SECTION 9.2. [RESERVED]............................................ 25
ARTICLE X--SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE............ 25
SECTION 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE............... 25
SECTION 10.3. SUCCESSOR OWNER TRUSTEE............................... 26
SECTION 10.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.............. 26
SECTION 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE......... 27
ARTICLE XI--MISCELLANEOUS
SECTION 11.1 SUPPLEMENTS AND AMENDMENTS............................ 28
SECTION 11.2. NO LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS.................................... 29
SECTION 11.3. LIMITATIONS ON RIGHTS OF OTHERS....................... 29
SECTION 11.4. NOTICES............................................... 30
SECTION 11.5. SEVERABILITY.......................................... 30
SECTION 11.6. SEPARATE COUNTERPARTS................................. 30
SECTION 11.7. SUCCESSORS AND ASSIGNS................................ 30
SECTION 11.8. [RESERVED]............................................ 30
SECTION 11.9. NO PETITION........................................... 30
SECTION 11.10. NO RECOURSE........................................... 31
SECTION 11.11. HEADINGS.............................................. 31
SECTION 11.12. GOVERNING LAW......................................... 31
SECTION 11.13. [RESERVED]............................................ 31
SECTION 11.14. SERVICER.............................................. 31
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<PAGE>
TRUST AGREEMENT DATED AS OF SEPTEMBER 1, 1997
BETWEEN BARNETT AUTO RECEIVABLES CORP., A NEVADA
CORPORATION, AS DEPOSITOR, AND THE BANK OF NEW YORK, A
NEW YORK BANKING CORPORATION, AS OWNER TRUSTEE.
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be amended
and supplemented from time to time.
"Basic Documents" shall mean the Sale and Servicing Agreement, the
Indenture, the Certificate Depository Agreement, the Note Depository
Agreement and the other documents and certificates delivered in connection
therewith.
"BDFS" means Barnett Dealer Financial Services, Inc., a Florida
corporation.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.17.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, Section 12 Del. Code Section 3801 et seq., as the same may be
amended from time to time.
"Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Trust, substantially in the form of Exhibit A
attached hereto.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at 101
Barclay Street, Floor 12 East, New York, New York 10286, Attention: Corporate
Trust Asset Backed Finance Unit; or at such other address as the Owner
Trustee may designate by notice to the Certificateholders and the Depositor,
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 Depositor).
<PAGE>
"Delaware Trustee" shall have the meaning assigned to such term in
Section 10.1.
"Depositor" shall mean Barnett Auto Receivables Corp., as the depositor
of the Receivables, and each successor to Barnett Auto Receivables Corp., (in
the same capacity) to the extent permitted hereunder.
"ERISA" shall have the meaning assigned to such term in Section 3.17.
"Expenses" shall have the meaning assigned to such term in Section 8.2.
"Holder" or "Certificateholder" shall mean the Person in whose name a
Trust Certificate is registered on the Certificate Register.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Note Depository Agreement" shall mean the agreement among the Trust, the
Trustee, the Servicer and The Depository Trust Company, as the initial
Clearing Agency, dated as of one Business Day prior to the Closing Date,
relating to the Notes, as the same may be amended or supplemented from time
to time.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from
time to time in the Trust Accounts and all other property of the Trust from
time to time, including any rights of the Owner Trustee and the Trust
pursuant to the Sale and Servicing Agreement.
"Owner Trustee" shall mean The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.9.
"Percentage Interest" shall mean with respect to any Trust Certificate,
the percentage interest of ownership in the Trust represented thereby as set
forth on the face thereof.
"Record Date" shall mean, with respect to any Distribution Date, the
close of business on the last day of the calendar month preceding such
Distribution Date.
"Responsible Officer" shall mean, when used with respect to the Owner
Trustee, any officer assigned to the Corporate Trust Office of the Owner
Trustee, including any Vice President, any Assistant Vice President, any
trust officer or any other officer of the Owner Trustee customarily
performing functions similar to those performed by any of the above
designated officers or any agent acting under a power of attorney from the
Owner Trustee,
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<PAGE>
having responsibility for the administration of this Trust Agreement, as the
case may be, and also, with respect to a particular matter relating to the
Trust, any other officer of the Owner Trustee to whom such matter is referred
because of such officer's knowledge of and familiarity with such matter. Any
notice given to the address and in the manner specified in Section 11.4
hereof shall be deemed to be given to a Responsible Officer.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, Barnett Auto Receivables Corp., as seller and
BDFS, as servicer and. as sponsor, dated as of September 1, 1997, as the same
may be amended and supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a Certificate.
SECTION 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not
defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of this Agreement or any such certificate or other document, as
applicable. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting principles,
the definitions contained in this Agreement or in any such certificate or
other document shall control.
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<PAGE>
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall
mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The Trust created hereby shall be known as "Barnett
Auto Trust 1997-A", in which name the Owner Trustee may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office, or at the office of the Delaware
Trustee, if one exists, or at such other address as the Owner Trustee may
designate by written notice to the Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is, and
the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement, to sell the Notes, and to
transfer the Trust Certificates to the Depositor pursuant to the Sale and
Servicing Agreement;
(ii) with the proceeds of the sale of the Notes, to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor pursuant to the Sale and Servicing
Agreement;
(iii) to acquire, receive and accept from time to time the Owner Trust
Estate, and to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of, and
remitted to the Trust pursuant to, the Indenture;
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<PAGE>
(iv) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents to which the Trust
is a party, to engage in such other activities as may be required in
connection with conservation of the Owner Trust Estate and the making of
distributions to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall
be deposited in the Certificate Distribution Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents to which the Trust is a party. It is the intention of the parties
hereto that the Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, solely for
federal income tax purposes, the Trust shall be disregarded as an entity
apart from its owner, the Depositor, in the event that the Depositor is the
sole Certificateholder for federal income tax purposes, or treated as a
partnership if there is more than one Certificateholder for federal income
tax purposes. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a division of the Depositor, or as a
partnership, as the case may be, for such tax purposes. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and to the extent not inconsistent herewith, in the Business
Trust Statute with respect to accomplishing the purposes of the Trust. The
Owner Trustee shall file the Certificate of Trust with the Secretary of State.
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<PAGE>
SECTION 2.7. Liability of the Depositor . (a) The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee. The Depositor shall also be liable
directly to and will indemnify any injured party for all losses, claims,
damages, liabilities and expenses of the Trust (including Expenses, to the
extent not paid out of the Owner Trust Estate) [to the extent that the
Depositor would be liable if the Trust were a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Depositor were a general
partner] ; provided, however, that the Depositor shall not be liable for any
losses incurred by a Certificateholder in the capacity of an investor in the
Trust Certificates or a Noteholder in the capacity of an investor in the
Notes. In addition, any third party creditors of the Trust (other than in
connection with the obligations described in the preceding sentence for which
the Depositor shall not be liable) shall be deemed third party beneficiaries of
this paragraph.
(b) No Holder, other than to the extent set forth in clause (a), shall
have any personal liability for any liability or obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or
a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust will be located in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New York.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be in Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a Nevada
corporation with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor has the corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full
power and authority to sell and assign the property to be sold and assigned
to and deposited with the Trust and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement has
been duly authorized by the Depositor by all necessary corporate action.
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<PAGE>
(c) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of incorporation or
by-laws of the Depositor, or any material indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any Federal or state regulatory body,
administra-tive agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(d) It is duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of
its business shall require such qualifications.
SECTION 2.11. [Reserved]
SECTION 2.12. Federal Income Tax Allocations. Net income of the Trust for
any month as determined for Federal income tax purposes (and each item of
income, gain, loss, credit and deduction entering into the computation
thereof) shall be allocated:
(a) for so long as (i) all of the Trust Certificates are owned by the
Depositor, the Trust shall be disregarded as an entity separate from the
Depositor such that net income of the Trust for any month as determined
solely for federal income tax purposes (and each item of income, gain, loss,
credit and deduction entering into the computation thereof) shall be
allocated to the Depositor and treated in the same manner as if the Trust
were a division or branch of the Depositor;
(b) in the event that the Depositor transfers (as such term is defined
for federal income tax purposes) any Trust Certificates and there is more
than one owner of Trust Certificates for federal income tax purposes, net
income of the Trust for any month as determined solely for federal income tax
purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated pro rata to the
Certificateholders based on their Percentage Interest.
ARTICLE III.
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Trust Certificates, the Depositor shall be the sole beneficiary of the
Trust.
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<PAGE>
SECTION 3.2. The Trust Certificates. The Trust Certificates shall be
issued in minimum denominations of 5% Percentage Interest. The Trust
Certificates shall be initially issued to the Depositor in a Percentage
Interest of 100%. The Trust Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee. Trust Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust
Certificates. A transferee of a Trust Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon due registration of such
Trust Certificate in such transferee's name pursuant to Section 3.4.
SECTION 3.3. Authentication of Trust Certificates. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Trust Certificates in
an aggregate Percentage Interest equal to 100% to be executed on behalf of
the Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Trust Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner
Trustee by manual signature; such authentication shall constitute conclusive
evidence that such Trust Certificate shall have been duly authenticated and
delivered hereunder. All Trust Certificates shall be dated the date of their
authentication.
SECTION 3.4. Registration of Transfer and Exchange of Trust Certificates.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates as herein provided. The Bank of New York
shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.8, and, upon
satisfaction of the conditions set forth below, the Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Certificates in authorized
denominations of a like class and aggregate face amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the
option of a Holder, Trust Certificates may be exchanged for other Trust
Certificates of the same class in authorized denominations of a like
aggregate amount upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8.
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<PAGE>
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or his attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Certificate Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Exchange Act. Each Trust Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Owner Trustee in accordance with its
customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may, but shall not be obligated to, require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Trust Certificates.
Notwithstanding the foregoing, the Owner Trustee shall not make and the
Certificate Registrar shall not register, transfers or exchanges of, Trust
Certificates for a period of 15 days preceding the due date for any payment
with respect to any Trust Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If
(a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and
(b) there shall be delivered to the Certificate Registrar and the Owner
Trustee such security or indemnity as may be required by them to save each of
them harmless, then in the absence of actual knowledge by a Responsible
Officer of the Owner Trustee that such Trust Certificate shall have been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Certificate, a new Trust Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Certificate
under this Section, the Owner Trustee or the Certificate Registrar may, but
shall not be obligated to, require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every person by virtue of
becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation
of a Trust Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Trust
Certificate shall be registered in the Certificate Register as the Owner of
such Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other
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purposes whatsoever, and neither the Owner Trustee, nor the Certificate
Registrar, nor the Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer or
the Depositor, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Depositor in writing, a list, in such form
as the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If
three or more Holders of Trust Certificates or one or more Holders of Trust
Certificates evidencing not less than 25% of the Certificate Balance apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their
rights under this Agreement or under the Trust Certificates and such
application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold either the Depositor
or the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the Borough of Manhattan, City of New York, an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Owner Trustee shall give prompt written notice
to the Depositor and to the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders pursuant to Section 5.2 and shall report
the amounts of such distributions to the Owner Trustee. Any Paying Agent
shall have the revocable power to withdraw funds from the Reserve Account for
the purpose of making the distributions referred to above. The Owner Trustee
may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The
Paying Agent shall initially be U.S. Bank National Association and any
co-paying agent chosen by U.S. Bank National Association and acceptable to
the Servicer. The Paying Agent shall be permitted to resign upon 30 days'
written notice to the Owner Trustee and the Servicer. In the event that U.S.
Bank National Association shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held
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by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Articles VII and VIII shall apply to U.S. Bank National Association or the
Owner Trustee also in its role as Paying Agent, for so long as U.S. Bank
National Association or the Owner Trustee shall act as Paying Agent and, to
the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 3.10. [Reserved]
SECTION 3.11. [Reserved]
SECTION 3.12. [Reserved]
SECTION 3.13. [Reserved]
SECTION 3.14. [Reserved]
SECTION 3.15. [Reserved]
SECTION 3.16. [Reserved]
SECTION 3.17. Trust Certificate Transfer Restrictions. (a) The Trust
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the provisions
of Title 1 of ERISA, (ii) a plan described in Section 4975(e) (1) of the
Code, or (iii) any entity whose underlying assets include plan assets by
reason of such plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan. The Owner
Trustee shall have no duty to determine whether Trust Certificates are owned
by a Benefit Plan.
(b) The Trust Certificates may not be offered or sold except to Qualified
Institutional Buyers in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A thereunder.
Each purchaser of the Trust Certificates will be deemed to have
represented and agreed as follows:
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(i) It is a Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act and is acquiring the Trust
Certificates for its own institutional account or for the account of a
Qualified Institutional Buyer.
(ii) It understands that the Trust Certificates will be offered in a
transaction not involving any public offering within the meaning of the
Securities Act, and that, if in the future it decides to resell, pledge
or otherwise transfer any Trust Certificates, such Trust Certificates may
be resold, pledged or transferred only (a) to the Servicer (upon
redemption), (b) to a person who the seller reasonably believes is a
Qualified Institutional Buyer that purchases for its own account or for
the account of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A or (c) pursuant to an effective registration statement under the
Securities Act.
(iii) It understands that the Trust Certificates will bear a legend
substantially to the following effect:
THE TRUST CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY"
LAWS. THE HOLDER HEREOF, BY PURCHASING ANY TRUST CERTIFICATE, AGREES FOR THE
BENEFIT OF THE ISSUER THAT SUCH TRUST CERTIFICATE IS BEING ACQUIRED FOR ITS
OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR
TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE),
(2) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, OR (3) IN A TRANSACTION COMPLYING WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
NO INTEREST IN THIS TRUST CERTIFICATE MAY BE ACQUIRED BY OR FOR THE ACCOUNT
OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(INCLUDING, WITHOUT LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND KEOGH
PLANS),
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OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE,
THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust except
claims or lawsuits brought in connection with the collection of the
Receivables and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Trustee or
the consent to the assignment by the Note Registrar, Paying Agent or Trustee
or Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable. The Owner Trustee shall notify the
Certificateholders in writing of any appointment of a successor Note
Registrar, Paying Agent or Certificate Registrar within five Business Days
thereof.
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SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders, to (a) remove the Servicer under the
Sale and Servicing Agreement pursuant to Section 8.1 thereof or (b) sell the
Receivables after the termination of the Indenture. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the Basic Documents or would be contrary to Section 2.3 nor shall the Owner
Trustee be obligated to determine if a Certificateholder's direction violates
this Section 4.4 or to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as otherwise specifically provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Trust Certificates evidencing not
less than a majority of the Percentage Interest. Except as otherwise
specifically provided herein, any written notice of the Certificateholders
delivered pursuant to this Agreement shall be effective if signed by Holders
of Certificates evidencing not less than a majority of the Percentage
Interest at the time of the delivery of such notice.
SECTION 4.6. Execution of Documents. Notwithstanding anything herein to
the contrary, the Owner Trustee is authorized, empowered and directed, on
behalf of the Trust, to execute, deliver, issue and authenticate the
Certificates, to execute, deliver and issue the Notes, and to execute and
deliver each Basic Document to which the Trust or the Owner Trustee is or is
to be a party and any other document, instrument, certificate or other
writing that may be necessary, convenient or incidental thereto. Any such
execution, delivery, issuance and authentication is hereby ratified and
confirmed in all respects and does not and will be deemed not to conflict
with, constitute or result in a breach or violation of, or a default under,
any provision of or any duty under this Trust Agreement.
ARTICLE V.
APPLICATION OF TRUST FUNDS: CERTAIN DUTIES
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SECTION 5.1. [Reserved]
SECTION 5.2. Distributions to Certificateholders. (a) On each
Distribution Date, the Owner Trustee will, based on the information contained
in the Servicer's Certificate delivered on the related Determination Date
pursuant to Section 4.9 of the Sale and Servicing Agreement, distribute to
Certificateholders, on a pro rata basis based on Percentage Interest, an
amount equal to the Certificateholders' Distributable Amount.
(a) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.8 of the Sale and Servicing Agreement on such
Distribution Date.
(b) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a non-US
Certificateholder), the Owner Trustee may in it sole discretion withhold such
amounts in accordance with this clause (c). In the event that an Owner wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long
as such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred. The Servicer shall facilitate compliance
with this Section 5.2(c) by performance of its duties under Section 10.1(b)
of the Sale and Servicing Agreement.
SECTION 5.3. [Reserved]
SECTION 5.4. Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be
made to each Certificateholder of record on the preceding Record Date either
by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if
(i) such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Distribution Date or (ii) such Certificateholder is the Depositor, or an
Affiliate thereof, or, if not, by check mailed to such Certificateholder at
the address of such holder appearing in the Certificate Register.
Notwithstanding the foregoing, the final distribution in respect of any Trust
Certificate (whether on the Final Scheduled Distribution Date or otherwise)
will be payable only upon presentation
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and surrender of such Trust Certificate at the office or agency maintained
for that purpose by the Owner Trustee pursuant to Section 3.8.
SECTION 5.5. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law and may be
deposited under such general conditions as may be prescribed by law. The
Owner Trustee shall not be liable for any interest thereon.
SECTION 5.6. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Subject to
Sections 10.1(b)(iii) and 10.1(c) of the Sale and Servicing Agreement, the
Depositor shall (a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis on the accrual method of accounting, (b)
deliver (or cause to be delivered) to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required (including, if applicable, Schedule K-1) to enable each
Certificateholder to prepare its Federal and state income tax returns, (c)
prepare or cause to be prepared, and file or cause to be filed, all tax
returns, if any, relating to the Trust (including, if applicable, a
partnership information return, Form 1065), and direct the Owner Trustee to
make such elections as may from time to time be required or appropriate under
any applicable state or Federal statute or rule or regulation thereunder so
as to maintain the Trust's characterization as a division or branch of its
100% owner, or as a partnership, as the case may be, for Federal income tax
purposes and (d) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. The Owner Trustee shall make all
elections pursuant to this Section as directed by the Depositor. The Owner
Trustee shall sign all tax information returns furnished to it in execution
form by the Depositor, and filed pursuant to this Section 5.6 and any other
returns as may be required by law and so furnished to it by the Depositor,
and in doing so shall rely entirely upon, and shall have no liability for
information provided by, or calculations provided by, the Depositor. In the
event the Trust is characterized as a partnership for federal income tax
purposes, the Depositor shall cause the Trust to elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the Receivables, and the Trust shall not make the election
provided under Section 754 of the Code.
SECTION 5.7. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.6, the Owner Trustee shall sign
on behalf of the Trust the tax returns of the Trust, if any, furnished to it
in execution form by the Depositor, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall
be signed by the Depositor so long as it is a Certificateholder, in its
capacity as "tax matters partner."
(b) In the event the Trust is characterized as a partnership for federal
income tax purposes, and the Depositor is a Certificateholder, the Depositor
shall be the "tax matters partner" of the Trust pursuant to the Code.
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ARTICLE VI.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is
named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is named
as a party and any amendment thereto, in each case, in such form as the
Depositor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof, and on behalf of the Trust, to direct the Trustee to
authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$109,300,000, Class A-2 Notes in the aggregate principal amount of
$155,000,000, Class A-3 Notes in the aggregate principal amount of
$170,000,000, Class A-4 Notes in the aggregate principal amount of
$90,000,000, Class A-5 Notes in the aggregate principal amount of $41,696,000
and Class B Notes in the aggregate principal amount of $36,128,240. In
addition to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to time to take
such action as the Servicer recommends to it in writing with respect to the
Basic Documents.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this
Agreement and the Basic Documents and to administer the Trust in the interest
of the Owners, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Servicer has agreed
in the Sale and Servicing Agreement, or the Depositor has agreed hereunder or
thereunder, to perform any act or to discharge any duty of the Owner Trustee
hereunder or of the Trust under any Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Servicer or the
Depositor to carry out its obligations hereunder or thereunder.
SECTION 6.2. Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct the Owner Trustee in
the management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to the
terms hereof or of any Basic Document or is otherwise contrary to law.
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(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Owner Trustee shall not
be liable on account of such action to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement
or the Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
(d) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Owner Trustee shall not
have received appropriate instruction within 10 days of such notice (or
within such shorter period of time as may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement
or the Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.3. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement or in any direction or
written instruction received by the Owner Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation or termination
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien or to prepare or
file any Securities and Exchange Commission filing for the Trust or to record
this Agreement or any Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the
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Owner Trustee that are not related to the ownership or the administration of
the Owner Trust Estate.
SECTION 6.4. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any direction or instruction delivered
to the Owner Trustee pursuant to Section 6.3.
SECTION 6.5. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.3 or (b) that, to the actual knowledge of a Responsible Officer of the
Owner Trustee, would result in the Trust's becoming taxable as a corporation
for Federal income tax purposes. The Certificateholders shall not direct the
Owner Trustee to take action that would violate the provisions of this
Section.
SECTION 6.6. Notice of Default Under Indenture. Within 5 business days of
receipt of a notice of Default under the Indenture, the Owner trustee shall
provide notice to each Certificateholder by letter.
ARTICLE VII.
CONCERNING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence or (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made
by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Servicer or any Certificateholder;
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(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the certificate of
authentication on the Trust Certificates, and the Owner Trustee shall in no
event assume or incur any liability, duty or obligation to any Noteholder or
to any Certificateholder, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Trustee or the Servicer or the Depositor under any of the Basic
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to insure compliance by the Servicer or the Depositor with any
agreement to which it is a party or to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to be performed
by the Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement or the Depositor under this Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or direction of
any of the Certificateholders, unless such Certificateholders have offered to
the Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and, except as otherwise provided in the third sentence of this
Section 7.1, the Owner Trustee shall not be answerable to any
Certificateholder in the performance of any such act.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
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SECTION 7.3. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of New York and having an office
within the State of New York. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance
by it with any of the terms or provisions hereof will contravene any federal
or New York state law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it,
or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed by
it to be signed by the proper party or parties. The Owner Trustee may accept
a certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the treasurer, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the
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written opinion or advice of any such counsel, accountants or other such
persons and not contrary to this Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created The Bank of New York
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Trust Certificates or
Receivables. The recitals contained herein and in the Trust Certificates
(other than the signature and countersignature of the Owner Trustee on the
Trust Certificates) shall be taken as the statements of the Depositor and the
Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement, of any Basic Document or of the Trust Certificates (other
than the signature and countersignature of the Owner Trustee on the Trust
Certificates) or the Notes, or of any Receivable or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Receivable,
or the perfection and priority of any security interest created by any
Receivable in any Financed Vehicle or the maintenance of any such perfection
and priority, or for or with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable or any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the
compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation or any action of the
Trustee or the Servicer or any subservicer taken in the name of the Owner
Trustee.
SECTION 7.7. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VIII.
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Sponsor and the
Owner Trustee, and the Owner Trustee shall
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be entitled to be reimbursed by the Depositor for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
SECTION 8.2. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee or any Indemnified
Party in any way relating to or arising out of this Agreement, the Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In any event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Depositor, which approval shall not be unreasonably
withheld.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX.
DISSOLUTION AND TERMINATION OF TRUST
SECTION 9.1. Termination of Trust Agreement. (a) The Trust shall
dissolve, (i) upon the final distribution by the Owner Trustee of all moneys
or other property or proceeds of the Owner Trust Estate in accordance with
the terms of the Indenture, the Sale and Servicing Agreement and Article V.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder or Owner, shall not (x) operate to terminate this Agreement
or the Trust, nor (y) entitle such Certificateholder's or Owner's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Trust or Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
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(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the
Sale and Servicing Agreement, stating (i) the Distribution Date upon or with
respect to which final payment of the Trust Certificates shall be made upon
presentation and surrender of the Trust Certificates at the office of the
Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Distribution Date
is not applicable, payments being made only upon presentation and surrender
of the Trust Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent (if other
than the Owner Trustee) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant
to Section 5.2.
In the event that all of the Certificateholders shall not surrender their
Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender
their Trust Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice all the
Trust Certificates shall not have been surrendered for cancellation, the
Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement.
Any funds remaining in the Trust after exhaustion of such remedies shall be
distributed, subject to applicable escheat laws, by the Owner Trustee to the
Depositor. Certificateholders shall thereafter look solely to the Depositor
as general unsecured creditors.
(d) Any funds remaining in the Trust after funds for final distribution
have been distributed or set aside for distribution shall be distributed by
the Owner Trustee to the Depositor.
(e) Upon dissolution and completion of the winding up of the Trust, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute and thereupon
the Trust and this Agreement shall terminate. The Owner Trustee shall furnish
notice of such dissolution to each Rating Agency.
SECTION 9.2. [Reserved]
ARTICLE X.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
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SECTION 10.1. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers; and having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or state
authorities and have (or have a parent which has) a long-term unsecured debt
rating of at least "BBB" by Standard & Poor's and at least "Baa3" by Moody's;
provided that with respect to the Owners Trustee (but not any successor
trustee) the combined capital and surplus of the parent organization of such
banking corporation shall be included in the determination of the combined
capital and surplus of such banking corporation. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.2. In addition, at all
times the Owner Trustee or a co-trustee shall be a person that satisfies the
requirements of Section 3807(a) of the Business Trust Statute (the "Delaware
Trustee").
SECTION 10.2. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Servicer, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Servicer may remove the Owner Trustee. If the Servicer
shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Servicer shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to
the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and
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payment of all fees and expenses owed to the outgoing Owner Trustee. The
Servicer shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to
the Servicer and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the Servicer and
the predecessor Owner Trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Servicer shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Trustee, the Noteholders and the
Rating Agencies. If the Servicer shall fail to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense
of the Servicer.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder,
provided such corporation shall be eligible pursuant to Section 10.1, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee shall mail notice of such merger,
sale, conversion or consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located or relating to the transactions contemplated by the Basic Documents,
the Servicer and the Owner Trustee acting jointly shall have the power and
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shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title
to the Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Servicer and the Owner Trustee may consider necessary or
desirable. If the Servicer shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Owner Trustee
alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Owner Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Servicer.
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Any separate trustee or co-trustee may at any time appoint the Owner
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 Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or Certificateholder; provided, further, that
any amendment within the scope of Section 11.1(b)(i) or (ii) shall be deemed
to materially and adversely affect the interests of the Noteholders or the
Certificateholders, as evidenced by an Officer's Certificate of the Servicer
delivered to the Owner Trustee.
(b) This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes and, to the extent affected thereby, the
consent of the Holders of Certificates evidencing not less than a majority of
the Certificate Balance for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance required to consent to any
such amendment, without the consent of the Holders of all the outstanding
Notes and Holders of all outstanding Certificates. Promptly after the
execution of any such amendment or consent, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, the Trustee and each of the Rating Agencies.
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(c) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization
of the execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(d) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(e) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise. The Owner Trustee shall furnish copies of
any such amendments to this Agreement to each Rating Agency.
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Owner
Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation
of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Servicer and, to the
extent expressly provided herein, the Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed
given upon receipt personally delivered, delivered by overnight courier or
mailed certified mail, return receipt requested and shall be deemed to have
been duly given upon receipt, if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Depositor, addressed to Barnett Auto
Receivables Corp., 3800 Howard Hughes Parkway, Suite 1560, Las Vegas, Nevada
89109,
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Attention: General Counsel; or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
(a) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder
and its successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by
a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. [Reserved]
SECTION 11.9. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenants and
agrees that they will not at any time institute against the Depositor, or
join in any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, this Agreement or any of the Basic Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial ownership interests in the Trust only and do not
represent interests in or obligations of the Depositor, the Servicer, the
Owner Trustee, the Trustee or any Affiliate thereof and no recourse by such
Certificateholder may be had against such parties or their assets, except as
may be expressly set forth or contemplated in this Agreement, the Trust
Certificates or the Basic Documents.
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SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
SECTION 11.13. [Reserved]
SECTION 11.14. Servicer. The Servicer is authorized to execute on behalf
of the Trust all such documents, reports, filings, tax returns, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare,
file or deliver pursuant to the Basic Documents. Upon written request, the
Owner Trustee on behalf of the Trust shall execute and deliver to the
Servicer a power of attorney appointing the Servicer the Trust's agent and
attorney-in-fact to execute all such documents, reports, filings, tax
returns, instruments, certificates and opinions.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as
of the day and year first above written.
THE BANK OF NEW YORK,
as Owner Trustee
By: __________________________________
Name:
Title:
BARNETT AUTO RECEIVABLES CORP.,
as Depositor,
By: __________________________________
Name:
Title:
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EXHIBIT A
NUMBER % Percentage Interest
R- CUSIP NO. ___________
SEE REVERSE FOR CERTAIN DEFINITIONS
THE TRUST CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE
SKY" LAWS. THE HOLDER HEREOF, BY PURCHASING ANY TRUST CERTIFICATE, AGREES FOR
THE BENEFIT OF THE ISSUER THAT SUCH TRUST CERTIFICATE IS BEING ACQUIRED FOR
ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD,
PLEDGED OR TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR
OTHERWISE), (2) TO A PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, OR (3) IN A TRANSACTION COMPLYING WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
NO INTEREST IN THIS TRUST CERTIFICATE MAY BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT
IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(INCLUDING, WITHOUT LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND KEOGH
PLANS), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF SUCH PLAN'S INVESTMENT IN THE ENTITY (EACH A "BENEFIT PLAN"). BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE
OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
BARNETT AUTO TRUST 1997-A
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Trust, as defined below, the property of which includes a pool of retail
installment sale contracts and other motor vehicle installment chattel paper
secured by new and used automobiles (including passenger cars,
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minivans, sport/utility vehicles and light trucks), and sold to the Trust by
Barnett Auto Receivables Corp.
(This Trust Certificate does not represent an interest in or obligation of
Barnett Auto Receivables Corp. or any of its Affiliates, except to the extent
described below.)
THIS CERTIFIES THAT Barnett Auto Receivables Corp. is the registered
owner of 100% Percentage Interest nonassessable, fully-paid, beneficial
ownership interest in Barnett Auto Trust 1997-A (the "Trust") formed by
Barnett Auto Receivables Corp., a Nevada corporation (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated as of September
1, 1997 (the "Trust Agreement"), between the Depositor and The Bank of New
York, not in its individual capacity but solely as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Trust Certificates
designated as "Asset Backed Certificates" (herein called the "Trust
Certificates"). Also issued under the Indenture dated as of September 1,
1997, between the Trust and U.S. Bank National Association as trustee, are
Notes designated as "Class A-1 5.6544% Asset Backed Notes" (the "Class A-1
Notes"), "Class A-2 5.92% Asset Backed Notes" (the "Class A-2 Notes"), "Class
A-3 6.03% Asset Backed Notes" (the "Class A-3 Notes"), "Class A-4 6.18% Asset
Backed Notes" (the "Class A-4 Notes"), "Class A-5 6.26% Asset Backed Notes"
(the "Class A-5 Notes") and "Class B 6.38% Asset Backed Notes" (the "Class B
Notes" and, together with the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class A-5 Notes, the "Notes"). This Trust
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of
this Trust Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust includes a pool of
retail installment sale contracts and other motor vehicle installment chattel
paper secured by new and used automobiles (including passenger cars,
minivans, sport/utility vehicles and light trucks), (the "Receivables"), all
monies received on the Receivables on or after September 1, 1997, security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, proceeds from claims on certain insurance policies and
certain other rights under the Trust Agreement and the Sale and Servicing
Agreement.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing in October 1997 to the Person in whose
name this Trust Certificate is registered at the close of business on the
last day of the calendar month immediately preceding the Distribution Date
(the "Record Date") such Certificateholder's Percentage Interest in the
amount to be distributed to Certificateholders on such Distribution Date.
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The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor, Servicer, and Certificateholders that,
for purposes of Federal income taxes, the Trust will be disregarded as an
entity apart from its owner if there is only one owner for Federal income tax
purposes, or, if there is more than one owner for Federal income tax
purposes, will be treated as a partnership the partners of which are the
Certificateholders. The Certificateholders by acceptance of a Trust
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Trust and the Trust Certificates for such tax purposes as
just described.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Trust or the Depositor, or join in any institution
against the Trust or the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Trust Certificate Register without the
presentation or surrender of this Trust Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Trust Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Trust
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this
Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS TRUST CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS.
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<PAGE>
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly
executed.
Date:
BARNETT AUTO TRUST 1997-A
By: THE BANK OF NEW YORK,
solely as Owner Trustee and not
in its individual capacity
By: __________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates of Barnett Auto Trust 1997-A
referred to in the within-mentioned Trust Agreement.
Date:
THE BANK OF NEW YORK,
solely as Owner Trustee and not in its
individual capacity
By: __________________________________
Authorized Signatory
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<PAGE>
(Reverse of Trust Certificate)
The Trust Certificates do not represent an obligation of, or an interest
in, the Depositor, the Servicer, the Owner Trustee or any Affiliates of any
of them and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement, the Indenture or the Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Sale and Servicing Agreement. The Trust Certificates are
limited in right of payment to certain collections and recoveries respecting
the Receivables, all as more specifically set forth in the Sale and Servicing
Agreement. A copy of each of the Sale and Servicing Agreement and the Trust
Agreement may be examined during normal business hours at the principal
office of the Depositor, and at such other places, if any, designated by the
Depositor, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee with the consent
of the holders of the Notes and the Trust Certificates evidencing not less
than a majority of the outstanding principal balance of the Notes and the
Certificate Balance. Any such consent by the holder of this Trust Certificate
shall be conclusive and binding on such holder and on all future holders of
this Trust Certificate and of any Trust Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of
such consent is made upon this Trust Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in
the Certificate Register upon surrender of this Trust Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing,
and thereupon one or more new Trust Certificates in authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is the Owner Trustee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Trust Certificates are exchangeable for new Trust
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the Owner
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<PAGE>
Trustee or the Certificate Registrar may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Trust Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Owner Trust Estate. The Servicer may at its
option purchase the corpus of the Trust at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property
of the Trust will effect early retirement of the Trust Certificates; however,
such right of purchase is exercisable, subject to certain restrictions, only
as of the last day of any Collection Period as of which the Pool Balance is
5% or less of the Initial Pool Balance. In addition, if the Servicer does not
exercise its option to purchase the Receivables within 90 days after the last
day of the Collection Period as of which such right can first be exercised,
an auction sale shall be conducted (as described in the Sale and Servicing
Agreement) and such auction shall effect early retirement of the Certificates.
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee)
the within Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_______________________________________ Attorney to transfer said Trust
Certificate on the books of the Trust Certificate Registrar, 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 Trust
Certificate 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 Certificate
Registrar, which requirements include membership or participation in STAMP
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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<PAGE>
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
BARNETT AUTO TRUST 1997-A
THIS Certificate of Trust of Barnett Auto Trust 1997-A (the "Trust"), is
being duly executed and filed by The Bank of New York, a New York banking
corporation, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. Code, Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is BARNETT AUTO
TRUST 1997-A.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is ____________________, ____________________,
____________________, Delaware ____________________, Attention: ____________
____________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust.
_____________________________________,
not in its individual capacity but
solely as owner trustee of the Trust.
By: __________________________________
Name:
Title:
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