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EXHIBIT 4.1
NATIONSCREDIT SECURITIZATION CORPORATION,
Depositor,
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA,
Servicer,
and
BANKERS TRUST COMPANY,
Trustee and Collateral Agent.
POOLING AND SERVICING AGREEMENT
Dated as of April 30, 1997
$___________________
NationsCredit Grantor Trust 1997-1
_____% Marine Receivable-Backed Certificates
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TABLE OF CONTENTS
Page
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ARTICLE I
SECTION 1.1. CREATION OF TRUST ............................................... 1
ARTICLE II
SECTION 2.1. CONVEYANCE OF DEPOSITOR RECEIVABLES AND RCC RECEIVABLES ......... 1
ARTICLE III
SECTION 3.1. SURETY BOND ..................................................... 3
ARTICLE IV
SECTION 4.1. ACCEPTANCE BY TRUSTEE ........................................... 3
ARTICLE V
SECTION 5.1. INCORPORATION OF STANDARD TERMS AND CONDITIONS OF AGREEMENT ..... 3
ARTICLE VI
SECTION 6.1. SPECIAL DEFINITIONS AND TERMS ................................... 3
ARTICLE VII
SECTION 7.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR ...... 5
ARTICLE VIII
SECTION 8.1. NATIONSCREDIT COMMERCIAL NOT TO RESIGN AS SERVICER .............. 6
ARTICLE IX
SECTION 9.1. AGENTS FOR SERVICE .............................................. 6
ARTICLE X
SCHEDULE A .................................................................... 1
SCHEDULE B .................................................................... 1
SCHEDULE C .................................................................... 1
ARTICLE XI
DEFINITIONS
SECTION 11.1. DEFINITIONS .................................................... 1
SECTION 11.2. USAGE OF TERMS ................................................. 12
SECTION 11.3. CUTOFF DATE AND RECORD DATE .................................... 12
SECTION 11.4. SECTION REFERENCES ............................................. 13
ARTICLE XII
THE RECEIVABLES
SECTION 12.1. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR .................... 00
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XXXXXXX 00.0. XXXXXXXXXX UPON BREACH ......................................... 16
SECTION 12.3. CUSTODY OF RECEIVABLE FILES .................................... 16
SECTION 12.4. DUTIES OF SERVICER AS CUSTODIAN ................................ 16
SECTION 12.5. INSTRUCTIONS; AUTHORITY TO ACT ................................. 17
SECTION 12.6. CUSTODIAN'S INDEMNIFICATION .................................... 17
SECTION 12.7. EFFECTIVE PERIOD AND TERMINATION ............................... 17
ARTICLE XIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 13.1 DUTIES OF SERVICER ............................................. 18
SECTION 13.2 COLLECTION OF RECEIVABLES PAYMENTS ............................. 18
SECTION 13.3 REALIZATION UPON RECEIVABLES ................................... 19
SECTION 13.4 PHYSICAL DAMAGE INSURANCE ...................................... 19
SECTION 13.5 MAINTENANCE OF SECURITY INTERESTS IN BOATS ..................... 19
SECTION 13.6 COVENANTS OF SERVICER .......................................... 19
SECTION 13.7 PURCHASE OF RECEIVABLES UPON BREACH ............................ 20
SECTION 13.8 SERVICING FEE .................................................. 20
SECTION 13.9 SERVICER'S CERTIFICATE ......................................... 21
SECTION 13.10 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT ........... 21
SECTION 13.11 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT'S REPORT ........ 22
SECTION 13.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING RECEIVABLES........................................ 22
SECTION 13.13 SERVICER EXPENSES .............................................. 22
SECTION 13.14 APPOINTMENT OF SUB-SERVICER .................................... 22
SECTION 13.15 REPRESENTATIONS AND WARRANTIES OF THE SERVICER
WITH RESPECT TO THE RCC
RECEIVABLES ................................................................... 23
ARTICLE XIV
DISTRIBUTIONS: STATEMENTS TO CERTIFICATEHOLDERS
SECTION 14.1. ACCOUNTS ....................................................... 25
SECTION 14.2. COLLECTIONS .................................................... 27
SECTION 14.3. APPLICATION OF COLLECTIONS ..................................... 28
SECTION 14.4. ADDITIONAL DEPOSITS ............................................ 28
SECTION 14.5. DISTRIBUTIONS .................................................. 29
SECTION 14.6. NET DEPOSITS ................................................... 30
SECTION 14.7. STATEMENTS TO CERTIFICATEHOLDERS ............................... 31
ARTICLE XIV A
THE SURETY BOND
SECTION 14A.1. THE SURETY BOND ................................................ 31
SECTION 14A.2. PREFERENCE EVENTS .............................................. 31
SECTION 14A.3. SURRENDER OF SURETY BOND ....................................... 32
SECTION 14A.4. REPLACEMENT SURETY BOND ........................................ 32
ARTICLE XV
THE CERTIFICATES
SECTION 15.1. THE CERTIFICATES ............................................... 32
SECTION 15.2. AUTHENTICATION OF CERTIFICATES ................................. 33
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SECTION 15.3. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES .......... 33
SECTION 15.4. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES .............. 34
SECTION 15.5. PERSONS DEEMED OWNERS .......................................... 34
SECTION 15.6. ACCESS TO LIST OF CERTIFICATEHOLDERS NAMES AND ADDRESSES ....... 34
SECTION 15.7. MAINTENANCE OF OFFICE OR AGENCY ................................ 35
SECTION 15.8. BOOK-ENTRY CERTIFICATES ........................................ 35
SECTION 15.9. NOTICES TO CLEARING AGENCY ..................................... 36
SECTION 15.10. DEFINITIVE CERTIFICATES ........................................ 36
ARTICLE XVI
THE DEPOSITOR
SECTION 16.1. REPRESENTATIONS OF DEPOSITOR ................................... 36
SECTION 16.2. LIABILITY OF DEPOSITOR; INDEMNITIES ............................ 38
SECTION 16.3. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF DEPOSITOR...................................... 39
SECTION 16.4. LIMITATION ON LIABILITY OF DEPOSITOR AND OTHERS ................ 39
SECTION 16.5. DEPOSITOR MAY OWN CERTIFICATES ................................. 39
SECTION 16.6. DEPOSITOR'S INTEREST IN RESERVE ACCOUNT; NO TRANSFER ........... 40
ARTICLE XVII
THE SERVICER
SECTION 17.1. REPRESENTATIONS OF SERVICER .................................... 40
SECTION 17.2. LIABILITY OF SERVICER; INDEMNITIES ............................. 42
SECTION 17.3. MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER .................................... 43
SECTION 17.4. LIMITATION ON LIABILITY OF SERVICER AND OTHERS ................. 44
ARTICLE XVIII
DEFAULT
SECTION 18.1. EVENTS OF DEFAULT .............................................. 44
SECTION 18.2. APPOINTMENT OF SUCCESSOR ....................................... 46
SECTION 18.3. NOTIFICATION TO CERTIFICATEHOLDERS ............................. 47
SECTION 18.4. WAIVER OF PAST DEFAULTS ........................................ 47
ARTICLE XIX
THE TRUSTEE
SECTION 19.1 DUTIES OF TRUSTEE ............................................ 47
SECTION 19.2 TRUSTEE'S CERTIFICATE ........................................ 50
SECTION 19.3 TRUSTEE'S ASSIGNMENT OF PURCHASED RECEIVABLES ................ 50
SECTION 19.4 CERTAIN MATTERS AFFECTING TRUSTEE ............................ 50
SECTION 19.5 TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES ........... 52
SECTION 19.6 TRUSTEE MAY OWN CERTIFICATES ................................. 53
SECTION 19.7 TRUSTEE'S FEES AND EXPENSES .................................. 53
SECTION 19.8 REPRESENTATIONS AND WARRANTIES OF TRUSTEE .................... 54
SECTION 19.9 ELIGIBILITY REQUIREMENTS FOR TRUSTEE ......................... 54
SECTION 19.10 RESIGNATION OR REMOVAL OF TRUSTEE ............................ 54
SECTION 19.11 SUCCESSOR TRUSTEE AND COLLATERAL AGENT ....................... 55
SECTION 19.12 MERGER OR CONSOLIDATION OF TRUSTEE ........................... 56
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SECTION 19.13. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE ................. 56
ARTICLE XX
TERMINATION
SECTION 20.1. TERMINATION OF THE TRUST ....................................... 57
SECTION 20.2. OPTIONAL PURCHASE OF ALL RECEIVABLES ........................... 58
ARTICLE XXI
MISCELLANEOUS PROVISIONS
SECTION 21.1. AMENDMENT ...................................................... 59
SECTION 21.2. PROTECTION OF TITLE TO TRUST ................................... 60
SECTION 21.3. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS ..................... 62
SECTION 21.4. GOVERNING LAW .................................................. 63
SECTION 21.5. NOTICES ........................................................ 63
SECTION 21.6. SEVERABILITY OF PROVISIONS ..................................... 64
SECTION 21.7. ASSIGNMENT ..................................................... 64
SECTION 21.8. CERTIFICATES NONASSESSABLE AND FULLY PAID ...................... 64
SECTION 21.9. NO PETITION .................................................... 64
SECTION 21.10. SURETY BOND ISSUER AS CONTROLLING PARTY ........................ 64
EXHIBIT A ..................................................................... 1
EXHIBIT B: FORM OF CERTIFICATE ................................................ 1
EXHIBIT C ..................................................................... 1
EXHIBIT D: MONTHLY SERVICER REPORT ............................................ 1
EXHIBIT E: CERTIFICATEHOLDER STATEMENT ........................................ 1
EXHIBIT F: TRUSTEE'S CERTIFICATE .............................................. 1
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This Pooling and Servicing Agreement, dated as of April 30, 1997, is
made with respect to the formation of the NationsCredit Grantor Trust 1997-1,
among NATIONSCREDIT SECURITIZATION CORPORATION, a Delaware corporation, as
Depositor (the "Depositor"), NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA, a
North Carolina corporation, as Servicer ("NationsCredit Commercial" or the
"Servicer"), and BANKERS TRUST COMPANY, as Trustee (the "Trustee") and as
Collateral Agent (the "Collateral Agent").
WITNESSETH THAT: In consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
SECTION 1.1. Creation of Trust. Upon the execution of this Agreement
by the parties hereto, there is hereby created the NationsCredit Grantor Trust
1997-l.
ARTICLE II
SECTION 2.1. Conveyance of Depositor Receivables and RCC Receivables.
(a) In consideration of the Trustee's delivery, on behalf of the Trust, to or
upon the order of the Depositor of Certificates (the "Certificates") in an
aggregate principal amount equal to $___________, the Depositor does hereby
sell, transfer, assign and otherwise convey to the Trustee, in trust for the
benefit of the Certificateholders and the Surety Bond Issuer, without recourse:
(i) all right, title and interest of the Depositor in and to
the Depositor Receivables and all payments received thereunder, in the
case of Simple Interest Receivables which are Depositor Receivables
and due thereunder in the case of Precomputed Receivables which are
Depositor Receivables, in each case, after the Cutoff Date;
(ii) the interest of the Depositor in the security interests
in the Boats related to Depositor Receivables granted by Obligors
pursuant to the Depositor Receivables;
(iii) the Purchase Agreement, including the right of the
Depositor to cause NationsCredit Commercial to repurchase Depositor
Receivables from the Depositor under certain circumstances;
(iv) the interest of the Depositor in any proceeds from
claims on any physical damage, credit life or disability insurance
policies covering Boats related to Depositor Receivables or Obligors;
(v) the interest of the Depositor in any proceeds from
recourse to Dealers on Depositor Receivables; and
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(vi) any proceeds of the foregoing.
The Depositor intends that the assignment and transfer herein
contemplated constitute a sale of the Depositor Receivables, conveying good
title thereto free and clear of any liens and encumbrances, from the Depositor
to the Trustee and that such property not be part of the Depositor's estate or
property of the Depositor in the event of any insolvency by the Depositor and
the Trustee acquiesces in such characterization. In the event that such
conveyance is deemed to be, or to be made as security for, a loan, the Depositor
hereby grants to the Trustee a first priority perfected security interest in all
of the Depositor's right, title and interest in and to the Receivables and the
other property conveyed hereby, and this Agreement shall constitute a security
agreement under applicable law.
(b) The Depositor shall cause RCC, pursuant to the Assignment, on
the date hereof to sell, transfer, assign and otherwise convey to the Trustee,
in trust for the benefit of the Certificateholders and the Surety Bond Issuer,
without recourse:
(i) any and all right and interest of RCC in and to the RCC
Receivables and all payments received thereunder, in the case of
Simple Interest Receivables which are RCC Receivables and due
thereunder in the case of Precomputed Receivables which are RCC
Receivables, in each case, after the Cutoff Date;
(ii) the security interest of RCC in the RCC Receivables;
(iii) any interest of RCC in the security interests in the
Boats related to RCC Receivables granted by Obligors pursuant to
the RCC Receivables;
(iv) any interest of RCC in any proceeds from claims on any
physical damage, credit life or disability insurance policies
covering Boats related to RCC Receivables or Obligors related to
RCC Receivables;
(v) any interest of RCC in any proceeds from recourse to
Dealers on RCC Receivables; and
(vi) any proceeds of the foregoing.
(c) The Depositor shall cause NationsCredit Marine, pursuant to the
Assignment, on the date hereof to sell, transfer, assign and otherwise convey to
the Trustee, in trust for the benefit of the Certificateholders and the Surety
Bond Issuer, without recourse:
(i) certain representations and warranties under the Purchase
and Sale Agreement, including the right of NationsCredit Marine to
cause NationsCredit
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Commercial to repurchase the RCC Receivables for breaches of such
representations and warranties; and
(ii) any proceeds of the foregoing.
SECTION 2.2 The Trustee agrees to hold any amounts received in respect
of the Receivables and allocable to late payment and extension fees,
administrative charges and the premiums of collateral protection insurance
purchased by the Servicer in trust for the benefit of the Depositor and agrees
to promptly remit any such amounts to the Depositor upon receipt thereof as
directed in writing in the relevant Servicer's Certificate.
ARTICLE III
SECTION 3.1. Surety Bond. The Servicer shall, simultaneously with the
execution and delivery of this Agreement, obtain the Surety Bond for the benefit
of the Trust in accordance with the respective terms thereof and deliver it to
the Trustee.
ARTICLE IV
SECTION 4.1. Acceptance by Trustee. The Trustee does hereby accept all
consideration conveyed by the Depositor pursuant to Section 2.1, and declares
that the Trustee shall hold such consideration and the Surety Bond and any
proceeds of any draws thereunder upon the trusts herein set forth for the
benefit of all present and future Certificateholders, subject to the terms and
provisions of this Agreement.
ARTICLE V
SECTION 5.1. Incorporation of Standard Terms and Conditions of
Agreement. This Agreement does hereby incorporate by reference the Standard
Terms and Conditions of Agreement for the NationsCredit Grantor Trust dated as
of April 30, 1997 (the "Standard Terms and Conditions of Agreement"), in the
form attached hereto.
ARTICLE VI
SECTION 6.1. Special Definitions and Terms. Whenever used in the
Standard Terms and Conditions of Agreement and in this Agreement, the following
words and phrases shall have the following meanings:
"Avoided Payment" shall have the meaning set forth in Section 14A.2 of
the Standard Terms and Conditions.
The "Assignment" is the Assignment dated as of April 30, 1997 among
RCC, NationsCredit Marine and the Trustee, substantially in the form of Exhibit
G.
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The "Corporate Trust Office" at the date of the execution hereof is
located at: Bankers Trust Company, Four Albany Street, 10th Floor, New York, New
York 10006, Attn: Corporate Trust and Agency Group.
The "Cutoff Date" shall be the close of business on April 30, 1997.
The first "Distribution Date" shall be June 16, 1997.
"Final Order" shall have the meaning set forth in Section 14A.2 of the
Standard Terms and Conditions.
"Final Scheduled Distribution Date" means _________________.
"Insolvency Proceeding" means the commencement, after the Closing
Date, of any bankruptcy, insolvency, readjustment of debt, reorganization,
marshalling of assets and liabilities or similar proceedings by or against any
person, or the commencement, after the Closing Date, of any proceedings by or
against any Person for the winding up or liquidation of its affairs, or the
consent after the date hereof to the appointment of a trustee, conservator,
receiver or liquidator in any bankruptcy, insolvency, readjustment of debt,
reorganization, marshalling of assets and liabilities or similar proceedings of
or relating to any Person.
"Notice of Payment" shall have the meaning set forth in Section 14A.2
of the Standard Terms and Conditions.
The "Optional Purchase Percentage" shall be 5%.
The "Original Certificate Balance" is $_____________.
The "Original Pool Balance" is $____________.
The "Pass-Through Rate" is ______% per annum.
The "Permitted Investments" shall be, at anytime, any one or more of
the obligations and securities set forth in Schedule B hereto.
The "Reimbursement Agreement" is the Insurance and Reimbursement
Agreement dated as of April 30, 1997, among the Surety Bond Issuer, the
Depositor and the Servicer.
The "Required Deposit Rating" shall be a rating on short-term deposits
of "Prime-l" by Moody's and "A-1" by S & P or any other rating acceptable to
each of the Rating Agencies; and any requirement that deposits have the
"Required Deposit Rating" shall mean that
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such deposits have the foregoing ratings from each of such rating agencies or
such other rating which is acceptable to the Rating Agencies.
The "Reserve Account" means the account designated as such,
established and maintained pursuant to Section 14.1(b) of the Standard Terms and
Conditions of Agreement.
The "Servicing Fee Rate" shall be ______% per annum.
The "Surety Bond" means the unconditional, irrevocable surety bond,
substantially in the form attached hereto as Exhibit A, to be issued by the
Surety Bond Issuer and naming the Trustee as beneficiary.
The "Surety Bond Issuer" shall be Capital Markets Assurance
Corporation.
ARTICLE VII
SECTION 7.1. Additional Representations and Warranties of the
Depositor. The Depositor does hereby make the following representations and
warranties on which the Trustee, on behalf of the Trust, relies in accepting the
Depositor Receivables in trust and executing and authenticating the
Certificates:
(i) Original Maturity of Depositor Receivables. Each
Depositor Receivable shall have an original maturity of not more
than 180 months.
(ii) Remaining Maturity of Depositor Receivables. As of the
Cutoff Date, each Depositor Receivable shall have a remaining
maturity of not more than 180 months.
(iii) Annual Percentage Rate. Each Depositor Receivable shall
have a fixed Annual Percentage Rate of not less than ____% and not
greater than ______%.
(iv) Location of Receivable Files. The Depositor Receivable
Files shall be kept at the offices of NationsCredit Commercial
Corporation at 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000
and at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx
00000.
(v) Maximum Balance. No Depositor Receivable has a Principal
Balance greater than $__________.
(vi) No Repossessions. As of the Cutoff Date, no Boat
securing any Depositor Receivable is in repossession status.
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(vii) No Bankruptcies. As of the Cutoff Date, no Obligor on a
Depositor Receivable was noted in the related Receivable File as
the subject of any bankruptcy proceeding.
The foregoing representations and warranties shall (i) speak as of the Closing
Date, but shall survive the sale, transfer and assignment of the Depositor
Receivables to the Trustee and (ii) be subject to the notice and repurchase
provisions set forth in Section 12.2 of the Standard Terms and Conditions of
Agreement in the same manner and to the same extent as if they were set forth
in Section 12.1 thereof.
ARTICLE VIII
SECTION 8.1. NationsCredit Commercial Not to Resign as Servicer.
Except as a result of the operation of Section 17.3 of the Standard Terms and
Conditions of Agreement, NationsCredit Commercial shall not resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties under this
Agreement shall no longer be permissible under applicable law. Notice of any
such determination permitting the resignation of NationsCredit Commercial shall
be communicated to 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 Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the Trustee
or a successor Servicer shall have assumed the responsibilities and obligations
of NationsCredit Commercial in accordance with Section 18.2 of the Standard
Terms and Conditions of Agreement.
ARTICLE IX
SECTION 9.1. Agents for Service. The agent for service for the
Depositor shall be Xxxx X. Xxxxxxxx, NationsCredit Management Corporation, 1
Canterbury Green, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
ARTICLE X
[RESERVED]
IN WITNESS WHEREOF, the Depositor, the Servicer, the Trustee and the
Collateral Agent have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
NATIONSCREDIT SECURITIZATION
CORPORATION, as Depositor
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By: ______________________
Name:
Title:
NATIONSCREDIT COMMERCIAL CORPORATION OF
AMERICA, as Servicer
By: _______________________
Name:
Title:
BANKERS TRUST COMPANY, as Trustee
and as Collateral Agent
By: _______________________
Name:
Title:
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SCHEDULE A
Schedule of Depositor Receivables
(Delivered on [ ])
A-1
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SCHEDULE B
Schedule of RCC Receivables
(Delivered on [ ])
B-1
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SCHEDULE C
Schedule of Permitted Investments
"Permitted Investments" are any of the following, which shall
mature on or prior to the next succeeding Deposit Date:
(i) any direct obligations of, and obligations fully
guaranteed by, the United States of America, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association, or
any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America;
(ii) (A) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by, or Federal funds sold by any
depository institution or trust company incorporated under the laws
of the United States of America or any state thereof and subject to
supervision and examination by Federal and/or state authorities or
under the laws of any other jurisdiction, so long as at the time of
such investment or contractual commitment providing for such
investment the commercial paper or other short-term debt
obligations of such depository institution or trust company have
the highest credit rating available from each Rating Agency or (B)
any other demand or time deposit or certificate of deposit which is
fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, in either case entered into with a depository institution
or trust company (acting as principal) described in clause (ii) (A)
above or with any money market funds maintained by a broker which
has, at the time of such investment, the highest credit rating from
each Rating Agency;
(iv) commercial paper having a rating of at least "A-1" by S&P
and "Prime-l" by Moody's at the time of such investment, including
commercial paper having such rating issued by the Trustee or
NationsCredit Corporation;
(v) money market funds or money market mutual funds (other
than closed-end funds), including funds for which Bankers Trust
Company is investment manager or advisor, which (A) maintain a
constant net asset value and (B) have at the time of such
investment a rating by AAAm or AAAmg by S&P or Aaa by Moody's;
(vi) if the Trustee does not receive written investment
instructions, the investments referred to in (v) above; or
(vii) any other investment approved in writing by each Rating
Agency.
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