Exhibit 4.2.1
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AMENDED AND RESTATED TRUST AGREEMENT
between
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................1
Section 1.01 Capitalized Terms.................................................1
Section 1.02 Other Definitional Provisions.....................................4
ARTICLE II ORGANIZATION...............................................................5
Section 2.01 Name..............................................................5
Section 2.02 Office............................................................5
Section 2.03 Purposes and Powers...............................................5
Section 2.04 Appointment of Owner Trustee......................................6
Section 2.05 Initial Capital Contribution of Trust Estate......................6
Section 2.06 Declaration of Trust..............................................6
Section 2.07 Characterization of the Trust for Tax Purposes....................6
...................................................................................6
Section 2.08 Liability of Certificateholders...................................7
Section 2.09 Title to Trust Property...........................................7
Section 2.10 Situs of Trust....................................................8
Section 2.11 Representations, Warranties and Covenants of the Depositor........8
Section 2.12 Federal Income Tax Allocations....................................9
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS..............................9
Section 3.01 Initial Ownership.................................................9
Section 3.02 The Trust Certificates............................................9
Section 3.03 Execution, Authentication and Delivery of Trust Certificates.....10
Section 3.04 Registration of Transfer and Exchange of Trust Certificates......10
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates..........12
Section 3.06 Persons Deemed Owners............................................13
Section 3.07 Access to List of Certificateholders' Names and Addresses........13
Section 3.08 Maintenance of Office or Agency..................................13
Section 3.09 Appointment of Paying Agent......................................13
Section 3.10 Definitive Trust Certificates....................................14
ARTICLE IV ACTIONS BY OWNER TRUSTEE..................................................14
Section 4.01 Prior Notice with Respect to Certain Matters.....................14
Section 4.02 Action by Certificateholders with Respect to Certain Matters.....16
Section 4.03 Restrictions on Certificateholders' Power........................17
Section 4.04 Majority Control.................................................17
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................................17
Section 5.01 Establishment of Trust Account...................................17
Section 5.02 Application of Trust Funds.......................................17
Section 5.03 Method of Payment................................................18
Section 5.04 No Segregation of Moneys; No Interest............................19
Section 5.05 Accounting and Reports to Certificateholders,
the Internal Revenue Service and Others..........................19
Section 5.06 Signature on Returns; Tax Matters Partner........................19
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.....................................19
Section 6.01 General Authority................................................20
Section 6.02 General Duties...................................................20
Section 6.03 Action upon Instruction..........................................20
Section 6.04 No Duties Except as Specified in this Agreement
or in Instructions...............................................21
Section 6.05 No Action Except Under Specified Documents or Instructions.......21
Section 6.06 Restrictions.....................................................21
Section 6.07 Administrative Duties............................................22
ARTICLE VII CONCERNING THE OWNER TRUSTEE.............................................26
Section 7.01 Acceptance of Trusts and Duties..................................26
Section 7.02 Furnishing of Documents..........................................27
Section 7.03 Representations and Warranties...................................27
Section 7.04 Reliance; Advice of Counsel......................................28
Section 7.05 Not Acting in Individual Capacity................................29
Section 7.06 Owner Trustee Not Liable for Trust Certificates
or for Receivables...............................................29
Section 7.07 Owner Trustee May Own Trust Certificates and Notes...............29
Section 7.08 Doing Business in Other Jurisdictions............................29
Section 7.09 Paying Agent, Certificate Registrar and Authenticating Agent.....30
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE...........................................30
Section 8.01 Owner Trustee's Fees and Expenses................................30
Section 8.02 Indemnification..................................................30
Section 8.03 Payments to the Owner Trustee....................................31
ARTICLE IX TERMINATION OF TRUST AGREEMENT............................................31
Section 9.01 Termination of Trust Agreement...................................31
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.....................32
Section 10.01 Eligibility Requirements for Owner Trustee.......................32
Section 10.02 Resignation or Removal of Owner Trustee..........................32
Section 10.03 Successor Owner Trustee..........................................33
Section 10.04 Merger or Consolidation of Owner Trustee.........................34
Section 10.05 Appointment of Co-Trustee or Separate Trustee....................34
ARTICLE XI MISCELLANEOUS.............................................................35
Section 11.01 Supplements and Amendments.......................................35
Section 11.02 No Legal Title to Trust Estate in Certificateholders.............36
Section 11.03 Limitations on Rights of Others..................................37
Section 11.04 Notices..........................................................37
Section 11.05 Severability.....................................................37
Section 11.06 Separate Counterparts............................................37
Section 11.07 Successors and Assigns...........................................37
Section 11.08 Covenants of the Depositor.......................................38
Section 11.09 No Petition......................................................38
Section 11.10 No Recourse......................................................38
Section 11.11 Headings.........................................................38
Section 11.12 GOVERNING LAW....................................................38
Section 11.13 Trust Certificate Transfer Restrictions..........................38
Section 11.14 ▇▇▇▇▇▇▇▇-▇▇▇▇▇...................................................39
Section 11.15 Acceptance of Terms of Agreement.................................39
EXHIBITS
Exhibit A Form of Trust Certificate...........................................A-1
Exhibit B Form of Transfer Certificate........................................B-1
Exhibit C Form of Investment Letter...........................................C-1
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of April 1, 2003,
is between ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., a Delaware
corporation, as depositor (the "Depositor"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as owner trustee (the "Owner Trustee").
WHEREAS, the Owner Trustee and the Depositor entered into a Trust
Agreement dated as of March 14, 2003 (the "Original Trust Agreement"); and
WHEREAS, the Original Trust Agreement is being amended and restated as
of April 1, 2003;
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree that
the Original Trust Agreement shall be amended and restated as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Agreement" shall mean this Amended and Restated Trust Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Bankruptcy Action" shall have the meaning assigned to such term in
Section 4.01.
"Basic Documents" means the Sale and Servicing Agreement, the
Indenture, this Agreement, the Assignment, Assumption and Recognition
Agreement, the Securities Account Control Agreement and other documents
(including any Letter of Representations with the Depository Trust Company)
and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
11.13.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.01.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Class A-1 Notes" shall mean the 1.300% Asset Backed Notes, Class A-1,
issued pursuant to the Indenture.
"Class A-2 Notes" shall mean the 1.538% Asset Backed Notes, Class A-2,
issued pursuant to the Indenture.
"Class A-3 Notes" shall mean the 2.076% Asset Backed Notes, Class A-3,
issued pursuant to the Indenture.
"Class A-4 Notes" shall mean the 2.716% Asset Backed Notes, Class A-4,
issued pursuant to the Indenture.
"Class B Notes" shall mean the 2.621% Asset Backed Notes, Class B,
issued pursuant to the Indenture.
"Class C Notes" shall mean the 3.748% Asset Backed Notes, Class C,
issued pursuant to the Indenture.
"Class D Notes" shall mean the 5.500% Asset Backed Notes, Class D,
issued pursuant to the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the 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
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, or at such other
address in the State of Delaware 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 at the address (which shall be in the
State of Delaware) designated by such successor Owner Trustee by notice to the
Certificateholders and the Depositor.
"Depositor" shall mean ▇▇▇▇▇▇▇ Sachs Asset Backed Securities Corp.,
and its successors, in its capacity as depositor hereunder.
"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 organized under the laws of the
United States of America or any State, 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 shall have a credit rating from each
Rating Agency in one of its generic rating categories that signifies
investment grade.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Holder" or "Certificateholder" shall mean a Person in whose name a
Trust Certificate is registered.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" shall mean the Indenture, dated as of April 1, 2003
between the Trust and JPMorgan Chase Bank, as Indenture Trustee, as amended,
supplemented or otherwise modified from time to time.
"Indenture Trustee" shall mean JPMorgan Chase Bank, a New York banking
corporation duly organized, validly existing and in good standing under the
laws of the State of New York, not in its individual capacity, but as
Indenture Trustee under the Indenture, or any successor Indenture Trustee
under the Indenture.
"Investment Letter" shall have the meaning assigned to such term in
Section 3.04.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the
Class D Notes.
"Opinion of Counsel" shall have the meaning set forth in the
Indenture.
"Original Trust Agreement" has the meaning set forth in the recitals.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
"Outstanding Amount" shall have the meaning set forth in the
Indenture.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09 and shall initially be JPMorgan Chase Bank.
"Percentage Interest" means, as to any Trust Certificate, the
percentage interest, specified on the face thereof, in the distributions on
the Trust Certificates pursuant to this Agreement.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
national banking association, unincorporated organization or government or any
agency or political subdivision thereof or any other entity.
"Rating Agency" shall have the meaning set forth in the Sale and
Servicing Agreement.
"Rating Agency Condition" shall have the meaning set forth in the Sale
and Servicing Agreement.
"Record Date" shall mean, with respect to any Distribution Date, the
last day of the month preceding such Distribution Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of April 1, 2003, among the Trust, as issuer, the
Depositor, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as seller, The Huntington National
Bank, as servicer, and JPMorgan Chase Bank, as indenture trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Similar Law" means any foreign, state or local law with provisions
substantially similar to Title I of ERISA or Section 4975 of the Code.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"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 GS Auto Loan Trust 2003-1 formed by the Original
Trust Agreement.
"Trust Certificate" shall mean a certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form
attached hereto as Exhibit A.
"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 the Certificate Distribution Account, 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.
Section 1.02 Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein
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. 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.
(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; "or" includes
"and/or"; and the term "including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable
to the singular and plural forms of such terms and to the masculine, feminine
and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.01 Name. The Trust heretofore created and continued
hereby is known as "GS Auto Loan Trust 2003-1," in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and ▇▇▇ and be sued.
Section 2.02 Office. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03 Purposes and Powers. The purpose of the Trust is
to engage in the following activities and the Owner Trustee acting on behalf
of the Trust shall have the power and authority:
(a) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and the Trust
Certificates, in each case in accordance with the Basic Documents;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase the Receivables, to pay the organizational, start-up
and transactional expenses of the Trust and to pay the balance of such
proceeds to the Depositor pursuant to the Sale and Servicing Agreement;
(c) 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;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(e) 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
(f) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions to the Certificateholders and
the Noteholders.
The Owner Trustee acting on behalf of 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 2.04 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 2.05 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 Trust Estate
and shall be deposited in the Certificate Distribution Account. 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.
Section 2.06 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the 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. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust.
Section 2.07 Characterization of the Trust for Tax Purposes.
(a) It is the intention of the parties hereto that the Trust
constitute a statutory trust under the Statutory Trust Statute and that this
Agreement constitute the governing instrument of such statutory trust. It is
the intention of the parties hereto that, solely for income and franchise tax
purposes: (1) if there is one beneficial owner of the Trust Certificates, the
Trust shall be treated as a disregarded entity, and (2) if there is more than
one beneficial owner of the Trust Certificates, the Trust shall be treated as
a partnership for income and franchise tax purposes, with the assets of the
partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders, and the Notes being
debt of the partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust and to the extent applicable, the
Certificateholders, will file or cause to be filed annual or other returns,
reports and other forms consistent with the characterization of the Trust
provided in the preceding sentence for such tax purposes and will not take any
position contrary to this characterization in any federal or state tax
filings.
(b) The Owner Trustee shall not file or join in, and each
Certificateholder by acceptance of its Trust Certificates agrees that it shall
not file or join in, an election to treat the Trust as an association pursuant
to Section 301.7701-3 of the Treasury Regulations (and thus, a corporation
under Section 301.7701-2(b)(2) of the Treasury Regulations).
(c) Neither the Trust nor any affiliate of the Trust shall
cause or permit Trust Certificates to be included on (nor shall such persons
recognize any purchases or sales thereof through) (a) any national, non-U.S.,
regional, local or other securities exchange, or (b) any over-the-counter
market (including an interdealer quotation system that regularly disseminates
firm buy or sell quotations by identified brokers or dealers by electronic
means or otherwise).
(d) The Trust shall not participate in any manner in the
establishment or inclusion of any interest in the Trust (including through the
repurchase or redemption of any interest in the Trust) on an established
securities market or a secondary market or the substantial equivalent thereof
(within the meaning of the Treasury Regulations under Section 7704 of the
Code), and shall not recognize any transfers of any interest in the Trust made
on such a market by redeeming the interest in the Trust of a transferor,
admitting the transferee as a Certificateholder, or otherwise recognizing any
rights of the transferee.
(e) For purposes of Section 2.07(d), the term "interest in the
Trust" shall have the meaning given to the term "interest in a partnership" in
the Treasury Regulations under Section 7704 of the Code and shall include,
without limitation, any financial instrument or contract, the value of which
is determined in whole or in part by reference to the Trust.
Section 2.08 Liability of Certificateholders. The
Certificateholders (including the Depositor or any Affiliate thereof) shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the general corporation law
of the State of Delaware.
Section 2.09 Title to Trust Property. Subject to the Indenture,
legal title to all the 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 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 or a separate trustee, as the case may be.
Section 2.10 Situs of Trust. The Trust will be located in the
State of Delaware and administered in the State of Delaware or the State of
New York. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New York. The
Trust shall not have any employees; provided, however, that nothing herein
shall restrict or prohibit the Owner Trustee from having employees within or
without the State of Delaware. 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 at the Corporate
Trust Office in the State of Delaware.
Section 2.11 Representations, Warranties and Covenants 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
corporation in good standing under the laws of the State of Delaware, 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 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 its property
or the conduct of its business shall require such qualifications.
(c) The Depositor has the 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 have been duly
authorized by the Depositor by all necessary corporate action.
(d) The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor, in accordance
with its terms.
(e) 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 certificate of
incorporation or the by-laws of the Depositor, or any 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, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(f) There are no proceedings or investigations pending or
threatened before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially
and adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement.
(g) The representations and warranties of the Depositor in
Section 3.02 of the Sale and Servicing Agreement are true and correct.
Section 2.12 Federal Income Tax Allocations. If there is more
than one beneficial owner of the Trust Certificates, net income of the Trust
for any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall
be allocated among the Certificateholders as of the first day following the
Record Date, in proportion to their percentage ownership interest of Trust
Certificates on the Record Date.
If there is more than one beneficial owner of the Trust Certificates,
net losses of the Trust, if any, for any month as determined for federal
income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated among the
Certificateholders as of the first day following the Record Date, in
proportion to their percentage ownership interest of Trust Certificates on the
Record Date. If there is more than one beneficial owner of the Trust
Certificates, the Trust is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the
Certificateholders, or as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01 Initial Ownership. Upon the formation of the Trust
by the execution of the Original Trust Agreement and until the issuance of the
Trust Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.02 The Trust Certificates.
(a) The Trust Certificates shall be issued in minimum
denominations of a one percent (1%) Percentage Interest in the Trust. 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 and shall be valid and binding obligations of the
Trust, 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.
(b) The Trust Certificates can only be purchased, acquired, or
held by an individual or entity who is a "U.S. person" as determined for U.S.
federal income tax purposes or who holds the Trust Certificates in connection
with the conduct of a trade or business within the United States and who
delivers to the Owner Trustee, the Certificate Registrar and the Depositor a
properly executed Form W-8ECI in connection with their acquisition of the
Trust Certificates and at such other times as reasonably requested by the
Owner Trustee, the Certificate Registrar and the Depositor or as required by
law.
(c) A transferee of a Trust Certificate, if any, shall become a
Certificateholder, shall become bound by this Agreement and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder
upon such transferee's acceptance of a Trust Certificate duly registered in
such transferee's name pursuant to Section 3.04.
Section 3.03 Execution, Authentication and Delivery of Trust
Certificates. On the Closing Date, the Owner Trustee shall cause the Trust
Certificates in an aggregate Percentage Interest equal to 100% to be executed
on behalf of the Trust and authenticated by the Owner Trustee on behalf of the
Trust and delivered to or upon the written order of the Depositor, without
further action by the Depositor, in authorized denominations. No Trust
Certificate shall entitle its Holder to any benefit under this Agreement or 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 or JPMorgan Chase Bank, as the Owner
Trustee's authenticating agent, 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.
When a Trust Certificate is duly executed and issued by the Owner
Trustee and duly authenticated in accordance with this Agreement, the Trust
Certificate will be fully paid, validly issued, nonassessable and entitled to
the benefits of this Agreement.
Section 3.04 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 3.08, 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. JPMorgan
Chase Bank shall be the initial Certificate Registrar.
The Trust Certificates have not been and will not be registered under
the Securities Act and will not be listed on any exchange. No transfer of a
Trust Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
said Act and such state securities laws. In the event that a transfer is to be
made in reliance upon an exemption from the Securities Act and state
securities laws, in order to assure compliance with the Securities Act and
such laws, the Holder desiring to effect such transfer and such Holder's
prospective transferee shall each certify to the Owner Trustee or the
Certificate Registrar and the Depositor in writing the facts surrounding the
transfer in substantially the forms set forth in Exhibit B and Exhibit C (the
"Investment Letter"). Except in the case of a transfer as to which the
proposed transferee has provided an Investment Letter with respect to a Rule
144A transaction, there shall also be delivered to the Owner Trustee or the
Certificate Registrar and the Depositor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act and
state securities laws, which Opinion of Counsel shall not be an expense of the
Trust, the Owner Trustee, the Certificate Registrar or the Indenture Trustee
(unless it is the transferee from whom such opinion is to be obtained) or of
the Depositor or the Seller; provided, that such Opinion of Counsel in respect
of the applicable state securities laws may be a memorandum of law rather than
an opinion if such counsel is not licensed in the applicable jurisdiction.
Upon request, the Owner Trustee shall provide to any Holder of a Trust
Certificate and any prospective transferee designated by any such Holder
information regarding the Trust Certificates and the Receivables and such
other information which is in the possession of the Owner Trustee or which can
be obtained by the Owner Trustee without undue burden or expense in order to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such Trust Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A.
Each Holder of a Trust Certificate desiring to effect such a transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Indenture Trustee, the Certificate Registrar and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with federal and state securities laws.
All transfers of Trust Certificates shall be subject to the transfer
restrictions described in Section 11.13 of this Agreement. Furthermore, no
transfer of a Trust Certificate shall be made to any Person unless the Owner
Trustee or the Certificate Registrar and the Depositor have received a
certificate in the form of paragraphs 3 and 4 to the Investment Letter
attached hereto as Exhibit C from such Person to the effect that such Person
is not a Benefit Plan and that such person is not a partnership, grantor
trust, or S Corporation (as defined in the Code) in which, after giving effect
to the proposed transfer, 65% or more of the value of each beneficial
ownership interest of such entity is attributable to the Trust Certificates
and/or the Notes and that such Trust Certificates have not been transferred
through an "established securities market" within the meaning of Section
7704(b) of the Code.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or shall cause JPMorgan Chase Bank as
its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Certificateholder, Trust Certificates may be exchanged for other Trust
Certificates of 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 3.08.
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 related Certificateholder or such Certificateholder's attorney
duly authorized in writing. Each Trust Certificate surrendered for
registration of transfer or exchange shall be cancelled 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 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.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of fifteen (15)
days preceding the due date for any payment with respect to the Trust
Certificates.
Notwithstanding anything contained herein to the contrary, neither the
Certificate Registrar nor the Owner Trustee shall be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Securities Act of 1934, as amended,
applicable state securities law or the Investment Company Act of 1940, as
amended; provided, however, that if a certificate or opinion is specifically
required to be delivered to the Owner Trustee or the Certificate Registrar by
a purchaser or transferee of a Trust Certificate, the Owner Trustee shall be
under a duty to examine the same to determine whether it conforms to the
requirements of this Trust Agreement and shall promptly notify the party
delivering the same if such certificate or opinion does not so conform.
Section 3.05 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 written notice that such
Trust Certificate has been acquired by a protected purchaser, the Owner
Trustee, on behalf of the Trust, shall execute and the Owner Trustee or
JPMorgan Chase Bank, as the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like
tenor and denomination. In connection with the issuance of any new Trust
Certificate under this Section, the Owner Trustee or the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Certificate shall be found at any time.
Section 3.06 Persons Deemed Owners. Prior to due presentation
of a Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose name
any Trust Certificate is registered in the Certificate Register as the owner
of such Trust Certificate for the purpose of receiving distributions pursuant
to Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
Section 3.07 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Paying Agent and the Depositor, within fifteen (15) days after
receipt by the Owner Trustee of a written request therefor from the Servicer,
the Paying Agent or the Depositor, 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. The Certificate
Registrar shall also furnish to the Owner Trustee and the Paying Agent a copy
of such list at any time there is a change therein. If (i) three (3) or more
Certificateholders or (ii) one (1) or more Certificateholders evidencing not
less than 25% of the Percentage Interests in the Trust Certificates 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 (5) Business
Days after the receipt of such application, afford such applicants access
during normal business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Trust Certificate, shall be
deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived. The Certificate Registrar shall upon the request of the Owner Trustee
provide such list, or access to such list, of Certificateholders as
contemplated by this Section 3.07.
Section 3.08 Maintenance of Office or Agency. The Owner Trustee
shall designate in the Borough of Manhattan, the 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 initially designates JPMorgan Chase
Bank as the office for such purposes. The Owner Trustee shall give prompt
written notice to the Depositor and the Certificateholders of any change in
the location of the Certificate Register or any such office or agency.
Section 3.09 Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.02 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 Certificate Distribution 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 initially shall be JPMorgan Chase Bank. As Paying Agent, JPMorgan
Chase Bank shall hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. JPMorgan
Chase Bank shall be permitted to resign as Paying Agent upon thirty (30) days'
prior written notice to the Owner Trustee. In the event that JPMorgan Chase
Bank 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 hereunder 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 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 resignation or removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01, 7.03, 7.04, 8.01 and 8.02 shall apply to JPMorgan
Chase Bank in its role of Paying Agent and Certificate Registrar, for so long
as JPMorgan Chase Bank shall act as Paying Agent and Certificate Registrar, to
the Owner Trustee, if the Owner Trustee is appointed to act as Paying Agent,
for so long as 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 Definitive Trust Certificates. The Trust
Certificates, upon original issuance, will be issued in the form of a
typewritten Trust Certificate or Trust Certificates in the form attached
hereto as Exhibit A to be delivered to the related Certificateholders, by, or
on behalf of, the Trust. Such Trust Certificate or Trust Certificates shall be
registered on the Certificate Register in the name of the holder thereof. The
Trust Certificates shall be printed, lithographed, typewritten or engraved or
may be produced in any other manner as is reasonably acceptable to the Owner
Trustee, as evidenced by its execution thereof.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action
unless at least thirty (30) days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders of record as of the
preceding Record Date in writing of the proposed action and such
Certificateholders specified in Section 4.04 hereof shall not have notified
the Owner Trustee in writing prior to the thirtieth (30th) day after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Owner Trustee
(except claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by or
against the Owner Trustee (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
(b) the election by the Owner Trustee to file an amendment to
the Certificate of Trust (unless such amendment is required to be filed under
the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
or any other change to this Agreement or any Basic Document in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
or any other change to this Agreement or any Basic Document in circumstances
where the consent of any Noteholder is not required and such amendment would
materially adversely affect the interests of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent. Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable;
(f) the consent to the calling or waiver of any default of any
Basic Document;
(g) the consent to the assignment by the Indenture Trustee or
the Servicer of their respective obligations under any Basic Document, unless
permitted in the Basic Documents;
(h) except as provided in Article IX hereof, dissolve,
terminate or liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other
entity, or convey or transfer all or substantially all of the Trust's assets
to any other entity;
(j) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement or the Basic Documents;
(k) do any act that conflicts with any other Basic Document;
(l) do any act that would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to
property, for other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity, unless
permitted in the Basic Documents; or
(p) change the Trust's purpose and powers from those set forth
in this Trust Agreement.
In addition, the Trust shall not commingle its assets with those of
any other entity. The Trust shall maintain its financial and accounting books
and records separate from those of any other entity. Except as expressly set
forth herein, the Trust shall not pay the indebtedness, operating expenses and
liabilities of any other entity. The Trust shall maintain appropriate minutes
or other records of all appropriate actions and shall maintain its office
separate from the offices of the Depositor and the Servicer.
The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders pursuant to Section 4.04, and to the
extent otherwise consistent with the Basic Documents and permitted by
applicable law, to (i) remove or replace the Servicer or the Indenture
Trustee, (ii) institute proceedings to have the Owner Trustee or the Trust
declared or adjudicated bankrupt or insolvent, (iii) consent to the
institution of bankruptcy or insolvency proceedings against the Owner Trustee
or the Trust, (iv) file a petition or consent to a petition seeking
reorganization or relief on behalf of the Owner Trustee or the Trust under any
applicable federal or state law relating to bankruptcy, (v) consent to the
appointment of a conservator, receiver, liquidator, assignee, trustee,
sequestrator (or any similar official) of the Owner Trustee or the Trust or a
substantial portion of the property of the Owner Trustee or the Trust, (vi)
make any assignment for the benefit of the Owner Trustee's or the Trust's
creditors, (vii) cause the Owner Trustee or the Trust to admit in writing its
inability to pay its debts generally as they become due, or (viii) take any
action, or cause the Owner Trustee or the Trust to take any action, in
furtherance of any of the foregoing (any of the above, a "Bankruptcy Action").
So long as the Indenture remains in effect, no Certificateholder shall have
the power to take, and shall not take, any Bankruptcy Action with respect to
the Owner Trustee or the Trust or direct the Owner Trustee to take any
Bankruptcy Action with respect to the Owner Trustee or the Trust.
Additionally, the Owner Trustee shall not have the power to commence a
Bankruptcy Action without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certification certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.02 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
written direction of the Certificateholders, to (a) remove the Servicer under
the Sale and Servicing Agreement pursuant to Article VIII thereof, (b) amend
the Sale and Servicing Agreement pursuant to Section 10.01(b) of such
document, or (c) except as expressly provided in the Basic Documents, 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 4.03 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to 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 2.03; nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section 4.04 Majority Control. Except as expressly 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 Interests in the Certificates. Except
as expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Agreement shall be effective if signed by Holders
of Trust Certificates evidencing not less than a majority of the Percentage
Interests in the Certificates at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 Establishment of Trust Account. The Paying Agent
shall establish and maintain on behalf of the Trust an Eligible Deposit
Account (the "Certificate Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit
of the Certificateholders. The title of the Certificate Distribution Account
shall be "GS Auto Loan Trust 2003-1: Certificate Distribution Account for the
benefit of the Certificateholders."
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee, on behalf of the Trust, for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Owner Trustee (or the Depositor
on behalf of the Owner Trustee, if the Certificate Distribution Account is not
then held by the Owner Trustee or an affiliate thereof) shall within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Rating Agency may consent) cause the Paying Agent to
establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments from the account
that is no longer an Eligible Deposit Account to such new Certificate
Distribution Account.
Section 5.02 Application of Trust Funds.
(a) On each Distribution Date, the Paying Agent shall
distribute to Certificateholders amounts deposited in the Certificate
Distribution Account pursuant to Section 5.06 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall cause
the Paying Agent to send to each Certificateholder the statement or statements
provided to the Owner Trustee by the Indenture Trustee pursuant to Section
5.07 of the Sale and Servicing Agreement with respect to such Distribution
Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Owner Trustee and the Paying Agent are
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 or the Paying Agent 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 Owner Trustee on
behalf of 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-U.S. Certificateholder), the
Owner Trustee or the Paying Agent may in its sole discretion withhold such
amounts in accordance with this paragraph.
(d) Any Holder of a Trust Certificate which is organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date such Holder becomes a Holder, (a) so notify the Owner Trustee and the
Paying Agent, (b) (i) provide the Owner Trustee and the Paying Agent with
Internal Revenue Service Form ▇-▇▇▇▇, ▇-▇▇▇▇ or other similar forms, as
appropriate, or (ii) notify the Owner Trustee and the Paying Agent that it is
not entitled to an exemption from United States withholding tax or a reduction
in the rate thereof on payments of interest. Any such Holder agrees by its
acceptance of a Trust Certificate, on an ongoing basis, to provide like
certification for each taxable year and to notify the Owner Trustee and the
Paying Agent should subsequent circumstances arise affecting the information
provided the Owner Trustee in clauses (a) and (b) above. The Owner Trustee and
the Paying Agent shall be fully protected in relying upon, and each Holder by
its acceptance of a Trust Certificate hereunder agrees to indemnify and hold
the Owner Trustee and the Paying Agent harmless against all claims or
liability of any kind arising in connection with or related to the Owner
Trustee's and the Paying Agent's reliance upon any documents, forms or
information provided by any Holder to the Owner Trustee.
Section 5.03 Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar and the Paying Agent appropriate written instructions at
least five (5) Business Days prior to such Distribution Date or, if not, by
check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
Section 5.04 No Segregation of Moneys; No Interest. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.05 Accounting and Reports to Certificateholders, the
Internal Revenue Service and Others. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis and
the accrual method of accounting, (b) deliver (or cause to delivered) to each
Certificateholder each Servicer Report delivered to the Owner Trustee pursuant
to Section 4.10(b) of the Sale and Servicing Agreement, (c) deliver (or cause
to delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1 if the Trust is treated as a partnership for federal
income tax purposes) to enable each Certificateholder to prepare its federal
and state income tax returns, (d) prepare (or cause to be prepared), file (or
cause to be filed) such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065 if the Trust is treated as a
partnership for federal income tax purposes) and make such elections as from
time to time may be required or appropriate under any applicable state or
federal statute or any rule or regulation thereunder so as to maintain the
Trust's characterization, (e) cause such tax returns to be signed in the
manner required by law and (f) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.02(c) with
respect to income or distributions to Certificateholders. The Owner Trustee
shall elect under Section 1278 of the Code to include in income currently any
market discount that accrues with respect to the Receivables. The Owner
Trustee shall not make the election provided under Section 754 of the Code.
Section 5.06 Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust, if any, unless applicable law requires a
Certificateholder to sign such documents.
(b) In the event that the Trust is treated as a partnership for
federal income tax purposes, the Depositor shall be designated the initial
"tax matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the
Code and applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party, in
each case, as evidenced conclusively by the Owner Trustee's execution thereof.
In addition to the foregoing, the Owner Trustee is authorized to take all
actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Depositor directs with respect to and in accordance with the Basic Documents
(except to the extent that this Agreement expressly requires the consent of
Certificateholders for such action, in which case the Owner Trustee shall not
take such action without such consent).
Section 6.02 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement.
Section 6.03 Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of
the Basic Documents, the Certificateholders may, by written instruction,
direct the Owner Trustee in the management of the Trust. 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.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date 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
such 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 (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement or the 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 of record as of the preceding Record Date requesting
instruction and, to the extent that the Owner Trustee acts in good faith in
accordance with any such instruction received or, if instructed not to act, in
good faith refrains from acting, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten (10) days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement or the 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 6.04 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 Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.03; 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, other than as set forth in Section 6.07, for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or Lien
granted to it hereunder or to prepare or file any 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 Trust Estate that result from actions by, or claims
against, the Owner Trustee in its individual capacity that are not related to
the ownership or the administration of the Trust Estate.
Section 6.05 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 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 document or instruction delivered
to the Owner Trustee pursuant to any provision of this Agreement.
Section 6.06 Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge 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 6.07 Administrative Duties.
(a) The Owner Trustee shall prepare or shall cause the
preparation by other appropriate Persons (and such preparation shall not be
the responsibility of the Seller, the Depositor, the Indenture Trustee or the
Servicer) of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Indenture with respect to the following matters under the
Indenture (parenthetical section references are to sections of the Indenture):
(i) (a) the appointment of a successor Note
Registrar and (b) giving the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or change in
location, of the Note Registrar (Section 2.04);
(ii) the delivery to any Holder of a Class D Note
and any prospective purchaser designated by such Holder, upon request
of such Holder or such prospective purchaser, such information in the
possession of the Owner Trustee required by Rule 144A as will enable
the resale of such Class D Notes to be made pursuant to Rule 144A
(Section 2.04);
(iii) the delivery for cancellation of any Note
delivered to the Issuer for cancellation, and the direction to destroy
or return such Note (Section 2.09);
(iv) the preparation of Definitive Notes in
accordance with the instructions of the Clearing Agency (Section
2.12);
(v) the designation of an office in the Borough of
Manhattan, City of New York, for registration of transfer or exchange
of Notes (Section 3.02);
(vi) the preparation of an Issuer Order directing
the Paying Agent to deposit with the Indenture Trustee all sums held
in trust by such Paying Agent (Section 3.03 and 4.03);
(vii) the preparation of an Issuer Order directing
the Indenture Trustee to provide notification of any unclaimed monies
and repayments (Section 3.03);
(viii) upon request, assist in the obtaining and
preservation of the Issuer's qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement included in the
Trust Estate (Section 3.04);
(ix) the preparation of all supplements and
amendments to the Indenture, instruments of further assurance and
other instruments and the taking of such other action as is necessary
or advisable to protect the Trust Estate, including the preparation
and filing of any financing statements and continuation statements
(Section 3.05);
(x) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as to the
Trust Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections
3.06 and 3.09);
(xi) the notification of a Servicer Termination
Event or an Additional Servicer Termination Event under the Sale and
Servicing Agreement and, if such Servicer Termination Event arises
from the failure of the Servicer to perform any of its duties under
the Sale and Servicing Agreement with respect to the Receivables, the
taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(xii) the notification to the Indenture Trustee of
(a) the termination of the Servicer and (b) the appointment of a
Successor Servicer (Section 3.07(f));
(xiii) the preparation and obtaining of documents
and instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(xiv) the duty to take any action as instructed by
the Controlling Party to cause the Servicer to comply with Sections
4.10, 4.11, 4.12 and Article VII of the Sale and Servicing Agreement
(Section 3.14);
(xv) the delivery of written notice to the
Indenture Trustee and the Rating Agencies of each Event of Default
under the Indenture and each default by the Servicer under the Sale
and Servicing Agreement (Section 3.19);
(xvi) the execution of any further instruments and
the performance of any acts reasonably necessary to carry out more
effectively the purpose of the Indenture (Section 3.20);
(xvii) the monitoring of the Issuer's obligations
as to the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of an
Opinion of Counsel and the Independent Certificate relating thereto
(Section 4.01);
(xviii) the preparation, obtaining or filing of
instruments, opinions, certificates and other documents required for
the release of Collateral (Section 4.04);
(xix) upon its actual knowledge of such, the
delivery to the Indenture Trustee of written notice in the form of an
Officer's Certificate of any event that with the giving of notice and
the lapse of time would become an Event of Default under clause (iii)
of Section 5.01 of the Indenture (Section 5.01);
(xx) the performance of any lawful action as the
Controlling Party may request to compel or secure the performance and
observance by The Huntington National Bank, the Seller or the
Servicer, as applicable, of each of their obligations to the Issuer in
the Basic Documents (Section 5.16);
(xxi) upon the request of the Indenture Trustee,
provide the Indenture Trustee with the information necessary to
deliver to each Noteholder such information as may be reasonably
requested to enable such Holder to prepare its United States federal
and state and local income or franchise tax returns (Section 6.06);
(xxii) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
(xxiii) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee or
separate trustee and any written instructions necessary in connection
with the resignation or removal of any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(xxiv) upon its actual knowledge of such, the
notification to the Indenture Trustee if and when the Notes are listed
on any stock exchange (Section 7.04);
(xxv) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the Trust
Estate (Section 8.04 and 8.05);
(xxvi) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of notices
with respect to such supplemental indentures (Sections 9.01, 9.02 and
9.03);
(xxvii) the delivery of new Notes conforming to any
supplemental indenture (Section 9.05);
(xxviii)the duty to furnish to the Rating Agencies
and the Indenture Trustee notice of redemption of Notes, if the
Servicer has not previously done so (Section 10.01);
(xxix) the duty to notify Noteholders of redemption
of the Notes or to cause the Indenture Trustee to provide such
notification (Section 10.02);
(xxx) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to take
any action under the Indenture (Section 11.01(a));
(xxxi) the preparation and delivery of all
Officer's Certificates and the obtaining of Independent Certificates,
if necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
(xxxii) the preparation and delivery to Noteholders
and the Indenture Trustee of any agreements or requests by the
Noteholders with respect to alternate payment and notice provisions
(Section 11.05); and
(xxxiii) the recording of the Indenture, if
applicable (Section 11.13).
(b) The Owner Trustee shall receive as compensation for its
services hereunder such fees as have been separately agreed upon before the
date hereof among the Depositor and the Owner Trustee, and the Owner Trustee
shall be reimbursed for its other reasonable expenses hereunder in the
priority set forth in Section 5.06(b)(ii) and (xi) in the Sale and Servicing
Agreement. In performing its duties under Section 5.05 or 6.07, the Owner
Trustee shall be entitled to the indemnification provided by the Issuer under
Section 8.02 of this Agreement, in the priority set forth in Section
5.06(b)(ii) and (xi) of the Sale and Servicing Agreement.
(c) It is understood and agreed that the Owner Trustee shall be
entitled to engage outside counsel, independent accountants and other experts
to assist the Owner Trustee in connection with the performance of its duties
set forth in Sections 5.05 and 6.07, including the preparation of all tax
reports and returns, securities law filings, Opinions of Counsel and
Independent Certificates and the Owner Trustee shall be reimbursed for the
expenses of such experts in accordance with the priority set forth in Section
5.06(b)(ii) and (xi) of the Sale and Servicing Agreement. The Owner Trustee
shall not be obligated to engage any expert or perform any duty as required
under Sections 5.05 and 6.07 for which reimbursement would exceed $1,000 until
such amount has been paid to the Owner Trustee, if payment of such
reimbursable amount is required of the Owner Trustee prior to the next
Distribution Date.
(d) The Depositor and the Servicer shall furnish to the Owner
Trustee from time to time such additional information regarding the Trust or
the Basic Documents as the Owner Trustee shall reasonably request. The
Indenture Trustee shall furnish to the Owner Trustee annually (or upon any
change thereto) a copy of the Note Register. The Servicer shall furnish to the
Owner Trustee copies of all documents and reports required to be provided by
the Servicer pursuant to Sections 4.10, 4.11, 4.12 and 4.14 of the Sale and
Servicing Agreement.
(e) The Owner Trustee shall not be responsible for taking any
action with respect to this Section 6.07 unless a responsible officer in the
Corporate Trust Administration Department of the Owner Trustee has actual
knowledge or has received written notice of the need to take such action.
(f) The rights and protections afforded to the Owner Trustee
pursuant to Article VII of this Agreement shall also be afforded to the Owner
Trustee with respect to the performance of its administrative duties under
this Section 6.07.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 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 Trust Estate upon the terms of the Basic Documents
and this Agreement. The Owner Trustee, in its individual capacity, shall not
be answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or gross negligence
(except as provided in Section 7.01(g)) or (ii) in the case of the inaccuracy
of any representation or warranty contained in Section 7.03 expressly made by
the Owner Trustee in its individual capacity. 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 Trust 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 Depositor or any Certificateholder;
(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 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, in its individual capacity, 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 or expressly agreed to in the
other Basic Documents;
(f) the Owner Trustee shall not be responsible for monitoring
the performance of, and shall not be liable for the default or misconduct of
the Depositor, the Servicer, the Indenture Trustee or any other Person under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be performed by the
Indenture Trustee under the Indenture or the Depositor or the Servicer under
the Sale and Servicing 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, in its individual capacity, or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee, in its individual capacity, 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 the Owner Trustee shall not be answerable for other than its
gross negligence or willful misconduct in the performance of any such act.
Section 7.02 Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
Section 7.03 Representations and Warranties. The Owner Trustee,
in its individual capacity, hereby represents and warrants to the Depositor,
for the benefit of the Certificateholders, that:
(a) It is a Delaware banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and the Basic Documents,
and this Agreement and the Basic Documents will be executed and delivered by
one of its officers who is duly authorized to execute and deliver this
Agreement and the Basic Documents on its behalf.
(c) Neither the execution or the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby,
nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware 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
bylaws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound.
(d) It is a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least
"A-1" by Standard & Poor's and "P-1" by Moody's or who is otherwise acceptable
to each Rating Agency.
Section 7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee (either in its individual capacity or as
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
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 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 reasonably and in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
Section 7.05 Not Acting in Individual Capacity. Except as
expressly provided in this Article VII, in accepting the trusts hereby
created, Wilmington Trust Company 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 Trust Estate for payment or
satisfaction thereof.
Section 7.06 Owner Trustee Not Liable for Trust Certificates or
for 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. Except as
set forth in Section 7.03, 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
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or 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
Indenture Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee.
Section 7.07 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 Indenture Trustee and the Servicer in banking transactions with
the same rights as it would have if it were not Owner Trustee.
Section 7.08 Doing Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington
Trust Company nor the Owner Trustee shall be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will (i) require the consent or approval or authorization or order of,
or the giving of notice to, or the registration with, or the taking of any
other action in required by, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware; (ii) result in
any fee, tax or other governmental charge under the laws of any jurisdiction
or any political subdivisions thereof in existence on the date hereof other
than the State of Delaware becoming payable by Wilmington Trust Company or the
Owner Trustee; or (iii) subject Wilmington Trust Company or the Owner Trustee
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby. The Owner Trustee shall be entitled to obtain advice
of counsel (which advice shall be an expense of the Trust under Section 8.01
of this Agreement) to determine whether any action required to be taken
pursuant to the Agreement results in the consequences described in clauses
(i), (ii) and (iii) of the preceding sentence. In the event that said counsel
advises the Owner Trustee that such action will result in such consequences,
the Owner Trustee will appoint an additional trustee pursuant to Section 10.05
hereof to proceed with such action.
Section 7.09 Paying Agent, Certificate Registrar and
Authenticating Agent. The rights and protections afforded to the Owner Trustee
pursuant to this Article VII and Sections 8.02, 10.02, and 10.03 shall also be
afforded to the Paying Agent, authenticating agent and Certificate Registrar.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 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 Depositor
and the Owner Trustee, and the Owner Trustee shall be reimbursed 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, in the priority set forth in Section
5.06(b) in the Sale and Servicing Agreement.
Section 8.02 Indemnification. The Trust 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 Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Trust shall not be liable for or
required to indemnify an Indemnified Party from or against Expenses arising or
resulting from (i) the willful misconduct, gross negligence or bad faith of
the Owner Trustee or (ii) the inaccuracy of a representation or warranty made
by the Owner Trustee in Section 7.03. The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Indemnified Party's choice of legal counsel shall be subject to the approval
of the Trust, which approval shall not be unreasonably withheld.
Section 8.03 Payments to the Owner Trustee. Any amounts paid
pursuant to this Article VIII shall be payable solely in the priority set
forth in Section 5.06(b)(ii) (in the case of fees) and 5.06(b)(xi) (in the
case of reimbursement of expenses and any indemnification) of the Sale and
Servicing Agreement and shall be deemed not to be a part of the Trust Estate
immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust
shall terminate and be of no further force or effect upon the final
distribution by the Owner Trustee of all moneys or other property or proceeds
of the Trust Estate in accordance with the terms of the Indenture, Article V
of the Sale and Servicing Agreement and the Statutory Trust Statute. Any money
or other property held as part of the Owner Trust Estate following such
distribution shall be distributed to the Depositor. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not (i) operate to terminate this Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
all or any part of the Trust or Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) This Agreement and the Trust are irrevocable. Except as
provided in Section 9.01(a) and in this Section 9.01(b), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust
or this Agreement.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which 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 (5) Business Days of receipt of notice
of such termination from the Servicer given pursuant to Section 9.01 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 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 5.02.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six (6) months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining 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 by the Owner Trustee to the Depositor, subject to applicable
escheat laws.
(d) Upon the winding up of the Trust in accordance with the
Statutory Trust Statute (including, without limitation, the reasonable
provision for payment of all obligations of the Trust in accordance with
Section 3808(e) of the Statutory Trust Statute), 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 Statutory Trust Statute and thereupon the Owner Trust and
this Agreement (other than Article VIII) shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) time deposits that are
rated at least "P-1" by Moody's and at least "A-1" by Standard & Poor's, or
which is otherwise acceptable to each Rating Agency. 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 10.02.
Section 10.02 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 Depositor, the Indenture
Trustee and the Rating Agencies. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee, provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Depositor, 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 Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Depositor shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to
the successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.01 or 10.02 shall execute,
acknowledge and deliver to the Depositor, the Indenture Trustee 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 Depositor 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 as a successor Owner Trustee pursuant to Section
10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Depositor shall mail notice thereof to all
Certificateholders, the Servicer, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Depositor shall fail to mail such notice within
ten(10) days after acceptance of such appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Trust.
Any successor Owner Trustee appointed pursuant to this Section 10.03
shall promptly file an amendment to the Certificate of Trust with the
Secretary of State identifying the name and principal place of business of
such successor Owner Trustee in the State of Delaware.
Section 10.04 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, 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, that such corporation shall be eligible pursuant to
Section 10.01; and provided further, that the Owner Trustee shall mail notice
of such merger or consolidation to each Rating Agency; and provided, further,
that such successor Owner Trustee shall file an amendment to the Certificate
of Trust as described in Section 10.03.
Section 10.05 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 Trust Estate or any Financed Vehicle may at the time be located,
the Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust Estate or any part thereof
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor Owner Trustee
pursuant to Section 10.01 and no notice of the appointment of any co-trustee
or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) 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
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;
(b) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement;
and
(c) the Owner Trustee 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.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
each Rating Agency, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, 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 the satisfaction of the Rating Agency Condition with respect to
such amendment, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to each Rating Agency, with
the consent of the Holders (as defined in the Indenture) of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes and the
consent of the Holders of Certificates evidencing not less than a majority of
the Percentage Interests in the Certificates, 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 aforesaid Percentage Interests in the Certificates
required to consent to any such amendment, without the consent of the Holders
of all then-outstanding Notes and 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 Indenture Trustee and each
Rating Agency.
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. 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 or Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
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.
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
(if any) to such amendment specified in this Agreement have been met. The
Owner Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 11.02 No Legal Title to Trust Estate in
Certificateholders. Neither the Depositor nor the Certificateholders shall
have legal title to any part of the Trust Estate. The Certificateholders shall
be entitled to receive distributions with respect to their undivided 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 undivided ownership interest in the 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 Trust Estate.
Section 11.03 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholders, the Paying Agent, the Certificate Registrar
and, to the extent expressly provided herein, the Indenture 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 Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.04 Notices.
(a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three (3) Business Days after mailing if
mailed by first-class mail, postage prepaid (except that notice to the Owner
Trustee shall be deemed given only upon actual receipt by the Owner Trustee),
if to the Owner Trustee, addressed to the Corporate Trust Office; if to the
Depositor, addressed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇; if to JPMorgan Chase Bank, addressed to JPMorgan Chase Bank, 4
New York Plaza, 6th Floor, New York, New York 10004 (facsimile number (212)
623-5933 ), Attention: Structured Finance Administration, GS Auto Loan Trust
2003-1; 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 copy of any such notice
shall also be mailed to the Servicer, addressed to The Huntington National
Bank, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not such
Certificateholder receives such notice.
Section 11.05 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 11.06 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 11.07 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, each of the Depositor and its permitted assignees, 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 11.08 Covenants of the Depositor. The Depositor will
not at any time institute against the Trust any bankruptcy 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 other Basic Documents.
Section 11.09 No Petition. The Owner Trustee, by entering into
this Agreement, each Certificateholder, by accepting a Trust Certificate, and
the Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust or join in any institution against the
Depositor or the Trust of, any bankruptcy 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 Trust Certificate represents a
beneficial interest in the Trust only and does not represent an interest in or
an obligation of the Depositor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
in this Agreement, the Trust Certificates or the Basic Documents.
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 CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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 11.13 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 ERISA)
that is subject to the provisions of Title I of ERISA or Similar Law, (ii) a
plan described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code or Similar Law or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). By accepting and holding a Trust Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
(b) Each purchaser or transferee of Trust Certificates or any
beneficial interest therein must represent as follows: (i) that it is
purchasing one or more Trust Certificates, in an authorized denomination, for
its own account as the sole beneficial owner, (ii) either it is not, for
federal income tax purposes, a partnership, grantor trust, or S Corporation
(as defined in the Code) (any such entity, a "Pass-Through Entity") or it is a
Pass-Through Entity, but after giving effect to such purchase of such Trust
Certificates less than 65% of the value of each beneficial ownership interest
in such Pass-Through Entity is attributable to the Trust Certificates and/or
the Notes, and (iii) such Trust Certificates have not been transferred through
an "established securities market" within the meaning of Section 7704(b) of
the Code. For the avoidance of doubt, a person making the foregoing
representation shall be deemed to constitute one "owner of beneficial
interests" for purposes of clause (c) below and for purposes of any other
provision of this Trust Agreement or any other Basic Document that references
beneficial ownership for purposes of Section 1.7704-1(h) of the Treasury
Regulations.
(c) No purchase or transfer shall be permitted, nor registered
by the Certificate Registrar, if such purchase or transfer would result in
there being more than 95 owners of beneficial interests in the Trust
Certificates for purposes of Section 1.7704-1(h) of the Treasury Regulations.
In determining whether this condition is satisfied in connection with any
purchase or transfer, the Certificate Registrar shall be permitted to
conclusively rely upon the Investment Letters provided by the respective
Certificateholders with respect to interests in the Trust Certificates.
Section 11.14 ▇▇▇▇▇▇▇▇-▇▇▇▇▇. Notwithstanding anything
contained herein or in any other Basic Document to the contrary, the Owner
Trustee shall not be required to execute, deliver or certify on behalf of the
Trust or any other Person any filings, certificates, affidavits or other
instruments (including, without limitation, any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification)
required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
Section 11.15 Acceptance of Terms of Agreement. The receipt and
acceptance of a Trust Certificate by a Certificateholder, without any
signature or further manifestation of assent, shall constitute the
unconditional acceptance by the Certificateholder of all the terms and
provisions of this Agreement, and shall constitute the agreement of the
Certificateholder that the terms and provisions of this Agreement shall be
binding, operative and effective as between the Owner Trustee and the
Certificateholder.
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.
▇▇▇▇▇▇▇ SACHS ASSET BACKED
SECURITIES CORP.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
JPMORGAN CHASE BANK, solely
for the purposes of accepting
(i) the appointment to act as
Certificate Registrar pursuant
to Section 3.04, (ii) the
appointment to act as Paying
Agent pursuant to Section 3.09,
and (iii) the designation of
its office pursuant to Section
3.08
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATE TO THE NOTES, AS SET FORTH IN
THE SALE AND SERVICING AGREEMENT.
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF
ANY STATE. ACCORDINGLY, TRANSFER OF THIS TRUST CERTIFICATE IS SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN SECTION 2.04 OF THE INDENTURE AND SECTION
3.04 OF THE TRUST AGREEMENT. BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE
HOLDER OF THIS TRUST CERTIFICATE IS DEEMED TO REPRESENT TO THE DEPOSITOR THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM IS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") AND IS ACQUIRING THIS TRUST
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS)."
"NO SALE, PLEDGE OR OTHER TRANSFER OF A TRUST CERTIFICATE SHALL BE
MADE UNLESS SUCH SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, (B) FOR SO LONG AS THE
TRUST CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
1933 ACT TO A PERSON THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT, AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION. EACH
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS TRUST CERTIFICATE SHALL BE DEEMED
TO MAKE THE FOREGOING REPRESENTATIONS. THE DEPOSITOR MAY REQUIRE AN OPINION OF
COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF THE TRUST
CERTIFICATES PURSUANT TO CLAUSES (A) OR (C) ABOVE."
BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE HOLDER AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT AND IS
NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA
OR SIMILAR LAW, (B) PLAN (AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT
IS SUBJECT TO SECTION 4975 OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS OR ▇▇▇▇▇ PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY,
INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL
ACCOUNT.
THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
NUMBER R-___ PERCENTAGE INTEREST: [ ]%
GS AUTO LOAN TRUST 2003-1 CERTIFICATE evidencing a fractional
undivided beneficial interest in the Trust, as defined below, the property of
which consists of: (1) all interest, principal, and any other amounts received
on or with respect to each of the Receivables after the Cut-Off Date; (2) the
security interests in the Financed Vehicles granted by Obligors pursuant to
the Receivables and any other interest of the Depositor in such Financed
Vehicles; (3) all other security interests or other property interests created
by or constituting each Receivable; (4) all of the Depositor's rights with
respect to each Receivable and the documentation relating to the Receivables,
including, without limitation, all rights under the VSI Policy with respect to
such Receivable and the contents of each Receivable File, including, without
limitation, all of the Depositor's enforcement and other rights under the UCC
and other Applicable Law; (5) rebates of premiums on insurance policies and
all other items financed as part of the Receivables in effect as of the
Cut-Off Date, including but not limited to, service warranties; (6) all
Servicing Rights with respect to, and all proceeds of and rights to enforce,
any of the foregoing, including, without limitation, any Insurance Proceeds
and Liquidation Proceeds; (7) all of the Depositor's rights (but not its
obligations) under the Assignment, Assumption and Recognition Agreement; (8)
all funds on deposit from time to time in the Trust Accounts and the
Certificate Distribution Account and in all investments therein and proceeds
thereof (including all Investment Earnings thereon); (9) all accounts, money,
chattel paper, securities, instruments, documents, deposit accounts,
certificates of deposit, letters of credit, advices of credit, banker's
acceptances, uncertificated securities, general intangibles, contract rights,
goods and other property consisting of, arising from or relating to any and
all of the foregoing; and (10) the proceeds of any and all of the foregoing.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN
OBLIGATION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY, ▇▇▇▇▇▇▇ SACHS ASSET BACKED
SECURITIES CORP. OR ANY OF THEIR RESPECTIVE AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner of a
____% PERCENT nonassessable, fully paid, undivided percentage interest in GS
AUTO LOAN TRUST 2003-1, a Delaware statutory trust (the "Trust"), formed by
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP., a Delaware corporation (the
"Depositor").
The Trust was created pursuant to a Trust Agreement amended and
restated as of April 1, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Trust Agreement"), between the Depositor and
Wilmington Trust Company, 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 or the Sale and Servicing
Agreement dated as of April 1, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Sale and Servicing Agreement"), among the
Trust, the Depositor, ▇▇▇▇▇▇▇ Sachs Mortgage Company, as Seller, The
Huntington National Bank, as Servicer and JPMorgan Chase Bank, as Indenture
Trustee.
This Trust Certificate is one of the duly authorized Trust
Certificates designated as "Asset Backed Certificates" (herein called the
"Trust Certificates"). Also issued under an Indenture dated as of April 1,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Indenture"), between the Trust and JPMorgan Chase Bank, as indenture trustee,
are the classes of Notes designated as "1.300% Asset Backed Notes, Class A-1,"
"1.538% Asset Backed Notes, Class A-2," "2.076% Asset Backed Notes, Class A-3"
and "2.716% Asset Backed Notes, Class A-4" (collectively, the "Class A
Notes"), "2.621% Asset Backed Notes, Class B" (the "Class B Notes"), "3.748%
Asset Backed Notes, Class C" (the "Class C Notes") and "5.500% Asset Backed
Notes, Class D" (the "Class D Notes" and together with the Class A Notes, the
Class B Notes and the Class C 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 its acceptance hereof assents and by which such Certificateholder
is bound. The property of the Trust consists of the Conveyed Assets. The
rights of the Certificateholders are subordinate to the rights of the
Noteholders, as set forth in 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 (each, a "Distribution Date"), commencing on May 15, 2003, to the Person
in whose name this Trust Certificate is registered on the last day of the
immediately preceding month (the "Record Date"), such Certificateholder's
fractional undivided interest in the amount to be distributed to
Certificateholders on such Distribution Date.
The Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinate to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Depositor and the Certificateholders that,
solely for income and franchise tax purposes : (1) if there is one beneficial
owner of the Trust Certificates, the Trust shall be treated as a disregarded
entity, and (2) if there is more than one beneficial owner of the Trust
Certificates, the Trust shall be treated as a partnership for income and
franchise tax purposes, with the assets of the partnership being the
Receivables and other assets held by the Trust, the partners of the
partnership being the Certificateholders, and the Notes being debt of the
partnership. A Certificateholder, by its acceptance of a Trust Certificate,
agrees to treat, and to take no action inconsistent with such treatment of the
Trust.
A Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Depositor, the Owner Trustee or the Trust, or join in
any institution against the Depositor, the Owner Trustee or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
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 or the Paying Agent by wire transfer
or check mailed to the Certificateholder of record in the 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 designated for that purpose by the Owner
Trustee in the Borough of Manhattan, The 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 or the authenticating
agent, 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 CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, 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.
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee of GS AUTO LOAN
TRUST 2003-1
Dated: [ ], 2003 By:________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
as Owner Trustee or as Owner Trustee
By: JPMORGAN CHASE BANK, as
Authenticating Agent
By:______________________________ By:_________________________
Authorizing Agent Authorizing Agent
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee in its individual
capacity or any affiliates of any of them and no recourse may be had against
such parties or their assets, except as expressly set forth or contemplated
herein or in the Trust Agreement 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 and
recoveries with respect to the Receivables (and certain other amounts), all as
more specifically set forth herein and in the Sale and Servicing Agreement. A
copy of each of the Sale and Servicing Agreement and the Trust Agreement may
be examined by any Certificateholder upon written request during normal
business hours at the principal office of the Depositor and at such other
places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions provided therein,
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 prior
written notice to each Rating Agency, with the consent of the Holders (as
defined in the Indenture) of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the Holders of Certificates
evidencing not less than a majority of the Percentage Interests in the
Certificates, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Trust Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders. 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 herefor 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 designated 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 of 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 JPMorgan Chase Bank.
Except as provided in the Trust Agreement, the Trust Certificates are
issuable only as registered Trust Certificates without coupons in minimum
denominations of one percent Percentage Interest. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Certificateholder surrendering the same. No service charge will be made for
any such registration of transfer or exchange, but the Owner 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 Trust Estate. The Servicer of the Receivables
and, under certain circumstances, Certificateholders, may at their option
purchase the Trust Estate 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; provided,
however, that such right of purchase is exercisable only as of the
Determination Date as of which the Pool Balance is less than or equal to 10%
of the Initial Pool Balance.
The Trust Certificates may not be acquired by (a) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions
of Title I of ERISA or Similar Law, (b) a plan described in Section 4975(e)(1)
of the Code that is subject to Section 4975 of the Code or Similar Law or (c)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity which uses plan assets to acquire Trust Certificates
(each, a "Benefit Plan"). By accepting and holding this Trust Certificate, the
Holder hereof shall be deemed to have represented and warranted that it is not
a Benefit Plan.
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, and hereby
irrevocably constitutes and appoints ____________, attorney, to transfer said
Trust Certificate on the books of the Certificate Registrar, with full power
of substitution in the premises.
Dated: _____________________________*/
Signature Guaranteed:
_____________________________*/
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
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.
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
JPMorgan Chase Bank
4 New York ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Administration,
GS Auto Loan Trust 2003-1
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Re: GS Auto Loan Trust 2003-1
-------------------------
Ladies and Gentlemen:
In connection with our disposition of the Asset Backed Certificates
(the "Trust Certificates") issued by the referenced trust (the "Trust") we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and are
being transferred by us in a transaction that is exempt from the registration
requirements of the Act and (b) we have not offered or sold any Trust
Certificates to, or solicited offers to buy any Trust Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which
would result in, a violation of Section 5 of the Securities Act.
Very truly yours,
[NAME OF TRANSFEROR]
By: _____________________________
Authorized Officer
EXHIBIT C
FORM OF INVESTMENT LETTER
[DATE]
Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
JPMorgan Chase Bank
4 New York ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Administration,
GS Auto Loan Trust 2003-1
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Re: GS Auto Loan Trust 2003-1
-------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of a ____% percentage
interest in the Asset Backed Certificates (the "Trust Certificates") of GS
Auto Loan Trust 2003-1 (the "Issuer"), we confirm that:
1. We understand that the Trust Certificates have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may
not be sold except as permitted in the following sentence. We understand and
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, (x) that such Trust Certificates are being offered only
in a transaction not involving any public offering within the meaning of the
Securities Act and (y) that such Trust Certificates may be resold, pledged or
transferred only (i) to the Depositor, (ii) so long as such Trust Certificate
is eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person whom we reasonably believe after due inquiry is a
"qualified institutional buyer" as defined in Rule 144A, acting for its own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional buyers") to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A or (iii) in a sale, pledge or other transfer made in a transaction
otherwise exempt from the registration requirements of the Securities Act, in
which case the Owner Trustee shall require that both the prospective
transferor and the prospective transferee certify to the Owner Trustee or the
Certificate Registrar and the Depositor in writing the facts surrounding such
transfer, which certification shall be in form and substance satisfactory to
the Owner Trustee and the Depositor. Except in the case of a transfer
described in clauses (i) or (iii) above, the Owner Trustee shall require that
a written opinion of counsel (which will not be at the expense of the
Depositor, any affiliate of the Depositor, the Owner Trustee or the
Certificate Registrar) satisfactory to the Owner Trustee or the Certificate
Registrar and the Depositor be delivered to the Owner Trustee or the
Certificate Registrar and the Depositor to the effect that such transfer will
not violate the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States. We will notify any
purchaser of the Trust Certificates from us of the above resale restrictions,
if then applicable. We further understand that in connection with any transfer
of the Trust Certificates by us that the Depositor and the Owner Trustee may
request, and if so requested we will furnish such certificates and other
information as they may reasonably require to confirm that any such transfer
complies with the foregoing restrictions.
2. We are a "qualified institutional buyer" as defined under Rule 144A
under the Securities Act and are acquiring the Trust Certificates for our own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional buyers"). We are
familiar with Rule 144A under the Securities Act and are aware that the seller
of the Trust Certificates and other parties intend to rely on the statements
made herein and the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
3. We are not (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 or Similar Law, (ii) a
plan described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code or Similar Law or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). We hereby acknowledge that no transfer of any Trust
Certificate shall be permitted to be made to any person unless the Owner
Trustee has received a certificate from such transferee to the effect of the
preceding sentence.
4. (a) We are purchasing one or more Trust Certificates, in an
authorized denomination, for our own account as the sole beneficial owner, (b)
either (1) we are not, for federal income tax purposes, a partnership, grantor
trust, or S Corporation (as defined in the Code) (any such entity, a
"Pass-Through Entity") or (2) we are a Pass-Through Entity, but after giving
effect to such purchase of such Trust Certificates less than 65% of the value
of each beneficial ownership interest in such Pass-Through Entity is
attributable to the Trust Certificates and/or the Notes, and (c) such Trust
Certificates have not been transferred through an "established securities
market" within the meaning of Section 7704(b) of the Code.
5. We understand that the Depositor, the Owner Trustee, the Issuer,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements, and we agree that
if any of the acknowledgments, representations and warranties deemed to have
been made by us by our purchase of the Trust Certificates, for our own account
or for one or more accounts as to each of which we exercise sole investment
discretion, are no longer accurate, we shall promptly notify the Depositor,
the Owner Trustee and ▇▇▇▇▇▇▇ Sachs & Co.
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:________________________________
Name:
Title:
Date:_______________________