EXHIBIT 4.4.4
FORM OF TRUST AGREEMENT
(DEALER FLOORPLAN SECURITIES)
TRUST AGREEMENT
BETWEEN
GS MORTGAGE SECURITIES CORP.
SELLER
AND
[ ]
OWNER TRUSTEE
DATED AS OF [ ], 20[ ]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................1
ARTICLE II ORGANIZATION...........................................................................................1
Section 2.1 Name...............................................................................................1
Section 2.2 Office.............................................................................................1
Section 2.3 Purposes and Powers................................................................................1
Section 2.4 Appointment of Owner Trustee.......................................................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate.................................................2
Section 2.6 Declaration of Trust...............................................................................2
Section 2.7 Liability of the Certificate Owners................................................................2
Section 2.8 Title to Trust Property............................................................................3
Section 2.9 Situs of Trust.....................................................................................3
Section 2.10 Representations and Warranties of the Seller......................................................3
Section 2.11 Tax Treatment.....................................................................................3
ARTICLE III THE CERTIFICATES......................................................................................4
Section 3.1 [Reserved].........................................................................................4
Section 3.2 Form of the Certificates...........................................................................4
Section 3.3 Execution, Authentication and Delivery.............................................................4
Section 3.4 Registration; Registration of Transfer and Exchange of Certificates................................5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates..................................................6
Section 3.6 Persons Deemed Certificateholders..................................................................7
Section 3.7 Access to List of Certificateholders' Names and Addresses..........................................7
Section 3.8 Maintenance of Corporate Trust Office..............................................................7
Section 3.9 Appointment of Paying Agent........................................................................7
Section 3.10 Certificates Issued to Seller.....................................................................8
Section 3.11 Book Entry Certificates...........................................................................8
Section 3.12 Notices to Clearing Agency........................................................................9
Section 3.13 Termination of Book Entry Registration............................................................9
Section 3.14 Seller as Certificateholder.......................................................................9
ARTICLE IV ACTIONS BY OWNER TRUSTEE...............................................................................9
Section 4.1 Prior Notice to Certificateholders with Respect to Certain Matters.................................9
Section 4.2 Action by Certificateholders with Respect to Certain Matters......................................10
Section 4.3 Action by Certificateholders with Respect to Bankruptcy...........................................10
Section 4.4 Restrictions on Certificateholders' Power.........................................................10
Section 4.5 Majority Control..................................................................................11
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.............................................................11
Section 5.1 Establishment of Certificate Distribution Account.................................................11
Section 5.2 Application of Trust Funds........................................................................11
Section 5.3 Method of Payment.................................................................................12
Section 5.4 Accounting and Reports to the Certificateholders, the Internal Revenue Service and Others.........12
Section 5.5 Signature on Returns; Tax Matters Partner.........................................................13
ARTICLE VI THE OWNER TRUSTEE.....................................................................................13
Section 6.1 Duties of Owner Trustee...........................................................................13
Section 6.2 Rights of Owner Trustee...........................................................................14
Section 6.3 Acceptance of Trusts and Duties...................................................................14
Section 6.4 Action upon Instruction by Certificateholders.....................................................15
Section 6.5 Furnishing of Documents...........................................................................17
Section 6.6 Representations and Warranties of Owner Trustee...................................................17
Section 6.7 Reliance; Advice of Counsel.......................................................................17
Section 6.8 Owner Trustee May Own Certificates and Notes......................................................18
Section 6.9 Compensation and Indemnity........................................................................18
Section 6.10 Replacement of Owner Trustee.....................................................................18
Section 6.11 Merger or Consolidation of Owner Trustee.........................................................19
Section 6.12 Appointment of Co-Trustee or Separate Trustee....................................................19
Section 6.13 Eligibility Requirements for Owner Trustee.......................................................21
ARTICLE VII TERMINATION OF TRUST AGREEMENT.......................................................................21
Section 7.1 Termination of Trust Agreement....................................................................21
Section 7.2 [Reserved]........................................................................................22
ARTICLE VIII AMENDMENTS..........................................................................................22
Section 8.1 Amendments Without Consent of Securityholders.....................................................22
Section 8.2 Amendments With Consent of Certificateholders and Noteholders.....................................23
Section 8.3 Form of Amendments................................................................................24
ARTICLE IX MISCELLANEOUS.........................................................................................25
Section 9.1 No Legal Title to Owner Trust Estate..............................................................25
Section 9.2 Limitations on Rights of Others...................................................................25
Section 9.3 Derivative Actions................................................................................25
Section 9.4 Notices...........................................................................................25
Section 9.5 Severability of Provisions........................................................................25
Section 9.6 Counterparts......................................................................................25
Section 9.7 Successors and Assigns............................................................................26
Section 9.8 No Petition Covenants.............................................................................26
Section 9.9 No Recourse.......................................................................................26
Section 9.10 Headings.........................................................................................27
Section 9.11 GOVERNING LAW....................................................................................27
Section 9.12 Certificate Transfer Restrictions................................................................27
Section 9.13 Indemnification by and Reimbursement of the Servicer.............................................28
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Undertaking Letter
Exhibit D Form of Investor Letter
Exhibit E Form of Certificate Depository Agreement
THIS TRUST AGREEMENT, dated as of ____________, 20__, between GS
Mortgage Securities Corp., a Delaware corporation as Seller, and [ ] a [ ]
as Owner Trustee.
In consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Certain capitalized terms used in this Agreement shall have the
respective meanings assigned to them in Part I of Appendix A to the Trust
Sale and Servicing Agreement of even date herewith, among the Seller, the
Servicer and the Trust (the "Trust Sale and Servicing Agreement"). All
references herein to "the Agreement" or "this Agreement" are to the Trust
Agreement as it may be amended and supplemented from time to time, and all
references herein to Articles, Sections and subsections are to Articles,
Sections and subsections of this Agreement unless otherwise specified. The
rules of construction set forth in Part II of such Appendix shall be
applicable to this Agreement.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The Trust created hereby shall be known as "
__________" 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 on behalf of the Trust.
Section 2.2 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
[state] as the Owner Trustee may designate by written notice to the
Certificate Owners and the Seller.
Section 2.3 Purposes and Powers. (a) The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the
following activities:
(i) to acquire, manage and hold the Receivables to be
transferred to the Trust from time to time pursuant to the Trust
Sale and Servicing Agreement;
(ii) to issue and sell the Notes pursuant to the Indenture or
to another indenture, note purchase agreement or similar agreement
and the Certificates pursuant to this Agreement, and to sell,
transfer or exchange the Notes and the Certificates;
(iii) to acquire property and assets from the Seller pursuant
to the Trust Sale and Servicing Agreement, to make payments or
distributions on the Securities, to make withdrawals from the
Reserve Fund and other accounts established pursuant to the Basic
Documents and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) to establish, acquire, hold and terminate liquidity,
credit and other enhancement arrangements, including each basis
swap and other Specified Support Arrangement from time to time,
and perform its obligations thereunder;
(v) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to
hold, manage and distribute to the Certificate Owners pursuant to
the terms of this Agreement and the Trust Sale and Servicing
Agreement any portion of the Trust Estate released from the lien
of, and remitted to the Trust pursuant to, the Indenture;
(vi) to enter into and perform its obligations and exercise
its rights under the Basic Documents to which it is to be a party;
(vii) 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
(viii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Owner Trust Estate and the making of
distributions to the Securityholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by
the terms of this Agreement or the Basic Documents.
Section 2.4 Appointment of Owner Trustee. The Seller hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.5 Initial Capital Contribution of Owner Trust Estate.
The Seller 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 Seller, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Owner Trust Estate and shall be deposited in the Certificate Distribution
Account. The Seller 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 2.6 Declaration of Trust. The Owner Trustee hereby
declares that it shall hold the Owner Trust Estate in trust upon and
subject to the conditions and obligations set forth herein and in the Trust
Sale and Servicing Agreement for the use and benefit of the Certificate
Owners, subject to the obligations of the Trust under the Basic Documents.
It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute, that this Agreement
constitute the governing instrument of such business trust and that the
Certificates represent the equity interests therein. The rights of the
Certificateholders shall be determined as set forth herein and in the
Business Trust Statute and the relationship between the parties created by
this Agreement shall not constitute indebtedness. The parties hereto agree
that, unless otherwise required by appropriate taxing authorities, the
Trust shall file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Trust
as a partnership for such tax purposes. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth in
this Agreement, the Trust Sale and Servicing Agreement and the Business
Trust Statute with respect to accomplishing the purposes of the Trust. The
Owner Trustee agrees to file the certificate required under ss.3810 et seq.
of the Business Trust Statute in connection with the formation of the Trust
as a business trust under the Business Trust Statute.
Section 2.7 Liability of the Certificate Owners.
Certificateholders and holders of beneficial interests in Certificates
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
Delaware General Corporation Law.
Section 2.8 Title to Trust Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
Section 2.9 Situs of Trust. The Trust shall be located and
administered in the State of [ ]. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of [ ] or the
State of [ ]. The Trust shall not have any employees in any state other
than [ ]; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of [ ].
Payments shall be received by the Trust only in [ ] or [ ], payments and
distributions shall be made by the Trust only from [ ] or [ ]. The only
office of the Trust shall be the Corporate Trust Office in [ ].
Section 2.10 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is 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 presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire and own the Receivables contemplated to be
transferred to the Trust pursuant to the Trust Sale and Servicing
Agreement.
(b) The Seller is duly qualified to do business and, where
necessary is in good standing (or is exempt from such requirement), and has
obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business requires
such qualifications, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations under the Basic Documents to which it is
a party.
(c) The Seller has the power and authority to execute and deliver
this Agreement, to carry out its terms and to consummate the transactions
contemplated herein; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein have
been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the
transactions contemplated herein by the Seller and the fulfillment of the
terms of this Agreement by the Seller shall 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 by-laws of the Seller, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller is a party
or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than pursuant to the Basic Documents), or violate any law or, to the best
of the Seller's knowledge, any order, rule or regulation applicable to the
Seller of any Governmental Authority having jurisdiction over the Seller or
any of its properties.
Section 2.11 Tax Treatment. The Seller and Owner Trustee, by
entering into this Agreement, and the Certificateholders and the
Certificate Owners, by acquiring any Certificate or interest in the Trust:
(i) express their intention that the Certificates shall qualify under
applicable tax law as partnership interests in a partnership, with the
assets of the partnership held by the Trust, (ii) unless otherwise required
by appropriate taxing authorities, agree to treat the Certificates as
partnership interests for purposes of federal, state and local income and
franchise taxes, [state] single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, and (iii) agree that
immediately upon there being more than one owner of Certificates, Section
5.5 of this Agreement will become applicable.
ARTICLE III
THE CERTIFICATES
Section 3.1 [Reserved].
Section 3.2 Form of the Certificates.
(a) The Certificates shall be issued in denominations of at least
$[ ] (or such other amount as the Seller may determine in order to prevent
the Trust from being treated as a "publicly traded partnership" under
Section 7704 of the Code, but in no event less than $[ ]). The Certificates
shall represent the entire beneficial interest in the Trust. The
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Responsible Officer of the Owner Trustee.
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 duly issued, fully paid and
non-assessable beneficial interests in 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 Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(b) The Definitive Certificates, if and when issued in accordance
with the terms applicable to the relevant class of Certificates, shall be
typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders) all
as determined by the officers executing such Certificates, as evidenced by
their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form. The
Class ______ Certificates will be substantially in the form set forth in
Exhibit A to this Agreement. The Certificates of any other class will be
substantially in the form attached to the Certificate Issuance Order
pursuant to which Certificates of such other class are issued for the first
time. The terms of any Certificates as set forth in the form attached to
this Agreement or a Certificate Issuance Order, as the case may be, shall
form part of this Agreement.
Section 3.3 Execution, Authentication and Delivery.
(a) On the Initial Closing Date, concurrently with the initial
sale, transfer and assignment of Receivables to the Trust pursuant to the
Trust Sale and Servicing Agreement, the Owner Trustee shall cause
Certificates with an aggregate initial Certificate Balance equal to $ [ ]
to be executed on behalf of the Trust, authenticated and delivered to or
upon the written order of the Seller, signed by its chairman of the board,
its president or any vice president, without further corporate action by
the Seller, in authorized denominations. Such Certificates shall be
designated as Floating Rate Asset Backed Certificates, and the Certificate
Rate for such Certificates shall equal, with respect to any Certificate
Payment Date, the product of: (i) a fraction, the numerator of which is the
number of days elapsed from and including the prior Certificate Payment
Date (or, in the case of the initial Certificate Payment Date, from and
including the Initial Closing Date) to but excluding such Certificate
Payment Date and the denominator of which is 360 and (ii) USD Three-Month
LIBOR plus [ ]% per annum. "Certificate Payment Date" for the Certificates
is the [15]th day of each month, or if such day is not a Business Day, the
next succeeding Business Day.
(b) From time to time after the Initial Closing Date, at the
direction of the Seller (a "Certificate Issuance Order"), and upon
satisfaction of the conditions set forth in Section 4.9 of the Trust Sale
and Servicing Agreement, the Owner Trustee shall cause additional
Certificates of any class theretofore issued, or Certificates of a new
class, with an aggregate initial Certificate Balance specified by the
Seller, to be executed on behalf of the Trust, authenticated and delivered
to or upon the written order of the Seller, signed by its chairman of the
board, its president or any vice president, without further corporate
action by the Seller, in authorized denominations. All such Certificates
shall have the terms, provisions and rights specified in the related
Certificate Issuance Order for such class of Certificates, may have a
different Certificate Rate than the Certificates of any other class, and
may be issued in book entry form pursuant to Section 3.11 hereof. The
Certificate Rate for any such Certificates issued after the Initial Closing
Date shall be set forth in the related Certificate Issuance Order. The
terms of any Certificates as provided in a Certificate Issuance Order shall
be considered terms of this Agreement. Any Certificate Issuance Order
issued pursuant to this Section shall be considered a part of this
Agreement.
(c) No Certificate of any class shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner
Trustee or the Owner Trustee's authenticating agent, by manual signature.
Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. The [ ] is
hereby appointed as the Owner Trustee's authenticating agent.
Section 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as provided
herein; provided, however, that no Certificate may be subdivided upon
transfer or exchange in a manner such that the resulting Certificate if it
had been sold in the original offering would have had an initial offering
price of less than $[ ] (or such other amount as the Seller may determine
in order to prevent the Trust from being treated as a "publicly traded
partnership" under Section 7704 of the Code, but in no event less than $[
]) and any attempted transfer of a Certificate in contravention of this
restriction shall be void ab initio and the purported transferor shall
continue to be treated as the owner of such Certificate for all purposes. [
] shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of
Certificate Registrar.
(b) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.8, the Owner
Trustee shall execute on behalf of the Trust, authenticate and deliver (or
shall cause , as its authenticating agent to authenticate and deliver), in
the name of the designated transferee or transferees, one or more new
Certificates of the same class in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or
any authenticating agent.
(c) At the option of a Holder, Certificates may be exchanged for
other Certificates of the same class in authorized denominations of a like
amount upon surrender of the Certificates to be exchanged at the Corporate
Trust Office maintained pursuant to Section 3.8. Whenever any Certificates
are so surrendered for exchange, the Owner Trustee shall execute on behalf
of the Trust, authenticate and deliver (or shall cause , as its
authenticating agent, to authenticate and deliver) one or more Certificates
dated the date of authentication by the Owner Trustee or any authenticating
agent. Such Certificates shall be delivered to the Holder making the
exchange.
(d) Every 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 Holder or his attorney duly authorized in
writing and such other documents and instruments as may be required by
Section 9.12. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Owner Trustee
or Certificate Registrar in accordance with its customary practice. The
Owner Trustee shall certify to the Seller that surrendered Certificates
have been duly canceled and retained or destroyed, as the case may be.
(e) No service charge shall be made for any registration of
transfer or exchange of 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 Certificates.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If: (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and
(ii) there is delivered to the Certificate Registrar, the Owner Trustee and
the Trust such security or indemnity as may be required by them to hold
each of them harmless, then, in the absence of notice to the Certificate
Registrar or the Owner Trustee that such Certificate has been acquired by a
protected purchaser, the Owner Trustee shall execute on behalf of the Trust
and the Owner Trustee shall authenticate and deliver (or shall cause [ ],
as its authenticating agent, to authenticate and deliver), in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate of the same class in authorized denominations of a
like amount; provided, however, that if any such destroyed, lost or stolen
Certificate, but not a mutilated Certificate, shall have become or within
seven days shall be due and payable, then instead of issuing a replacement
Certificate the Owner Trustee may pay distributions to such destroyed, lost
or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or
distribution in respect of a destroyed, lost or stolen Certificate pursuant
to subsection 3.5(a), a protected bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued
presents for payment such original Certificate, the Owner Trustee shall be
entitled to recover such replacement Certificate (and any distributions or
payments made with respect thereto) from the Person to whom it was
delivered or any Person taking such replacement Certificate from such
Person to whom such replacement Certificate was delivered or any assignee
of such Person, except a protected bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Owner Trustee
in connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee may require the payment by the
Holder of such Certificate of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Owner Trustee
and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5
in replacement of any mutilated, destroyed, lost or stolen Certificate
shall constitute an original additional beneficial interest in the Trust,
whether or not the mutilated, destroyed, lost or stolen Certificate shall
be found at any time or be enforced by anyone, and shall be entitled to all
the benefits of this Agreement equally and proportionately with any and all
other Certificates duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner
Trustee or the Certificate Registrar may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the
Certificateholder of such Certificate for the purpose of receiving
distributions pursuant to Article V and for all other purposes whatsoever,
and neither the Owner Trustee nor the Certificate Registrar shall be
affected by any notice to the contrary.
Section 3.7 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Seller, within 15 days after receipt by the Owner Trustee
of a request therefor from the Servicer or the Seller in writing, a list,
in such form as the Servicer or the Seller may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. Each Holder, by receiving and holding a Certificate, shall be deemed
to have agreed not to hold any of the Servicer, the Seller or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 3.8 Maintenance of Corporate Trust Office. The Owner
Trustee shall maintain in the City of New York an office or offices or
agency or agencies where 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 Certificates and the Basic Documents may be
served. The Owner Trustee initially designates the offices of [ ], as its
principal office for such purposes. The Owner Trustee shall give prompt
written notice to the Seller and to the Certificateholders of any change in
the location of the Certificate Register or any such office or agency.
Section 3.9 Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee and the Servicer; provided that no such
reports shall be required so long as the Seller is the sole
Certificateholder. 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
shall initially be [ ].
[ ] shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Owner Trustee. If [ ] shall no longer be the Paying
Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Owner Trustee to execute and deliver to the Owner Trustee an instrument in
which such successor Paying Agent or additional Paying Agent shall agree
with the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent shall hold all sums, if any, held by it for
distribution to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the Owner
Trustee also in its role 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 Certificates Issued to Seller. On and after the
Initial Closing Date, the Seller shall retain beneficial and record
ownership of Certificates representing at least [ ]% of the Certificate
Balance of each class of Certificates. Certificates issued to the Seller
shall be in definitive form only.
Section 3.11 Book Entry Certificates. The Certificates to be
issued on the Initial Closing Date (other than those described in Section
3.10) shall be issued as Book Entry Certificates and shall be subject to a
Certificate Depository Agreement substantially in the form attached as
Exhibit E hereto. Such Certificates shall be delivered to DTC, the initial
Clearing Agency by or on behalf of the Trust and shall initially be
registered on the Certificate Register in the name of [ ], the nominee of
the initial Clearing Agency, and no such Certificate Owner shall receive a
Definitive Certificate. If, and to the extent, so provided in the related
Certificate Issuance Order, Certificates to be issued after the Initial
Closing Date (other than those described in Section 3.10) may be issued in
the form of a typewritten certificate or certificates representing Book
Entry Certificates. Any such Book Entry Certificate shall be delivered to
the Clearing Agency by or on behalf of the Trust and shall be registered on
the Certificate Register in the name of the Clearing Agency (or its
nominee) and no Certificate Owner shall receive a Definitive Certificate.
If and to the extent Book Entry Certificates have been issued pursuant to
this Section 3.11 with respect to any Certificates:
(a) the provisions of this Section 3.11 shall be in full force and
effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the distribution of Certificate Balance and interest
on such Certificates and the giving of instructions or directions
hereunder) as the sole Holder of such Certificates, and shall have no
obligation to the Certificate Owners;
(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants and, unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing
Agency shall make book entry transfers among the Clearing Agency
Participants and receive and transmit distributions of Certificate Balance
and interest on such Certificates to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Voting Interests, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received written instructions to such effect from Certificate Owners
and/or Clearing Agency Participants owning or representing, respectively,
such required percentage of Voting Interests and has delivered such
instructions to the Owner Trustee.
The Seller or the Owner Trustee may set a record date for the
purpose of determining the identity of Holders of Certificates entitled to
vote or to consent to any action by vote as provided in this Agreement.
Section 3.12 Notices to Clearing Agency. With respect to any
Certificates issued as Book Entry Certificates, whenever a notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates representing such Certificates
shall have been issued to the related Certificate Owners pursuant to
Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to the related
Certificateholders to the Clearing Agency and shall have no further
obligation to such Certificate Owners.
Section 3.13 Termination of Book Entry Registration. If for any
Certificates issued as Book Entry Certificates: (i) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the Certificates, and the Administrator is unable to locate a qualified
successor, (ii) the Administrator at its option advises the Owner Trustee
in writing that it elects to terminate the book entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicing Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the then outstanding Voting Interests
advise the Clearing Agency in writing that the continuation of a book entry
system through the Clearing Agency is no longer in the best interest of the
Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Owner Trustee of the typewritten
Certificate or Certificates representing Book Entry Certificates by the
Clearing Agency, accompanied by registration instructions, the Owner
Trustee shall execute and authenticate the related Definitive Certificates
in accordance with the instructions of the Clearing Agency. Neither the
Certificate Registrar nor the Owner Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. No Certificate Owner shall have
the right to request that Definitive Certificates be issued to such
Certificate Owner (or its nominee) or request that its interest be
exchanged for a Definitive Certificate or Definitive Certificates other
than in accordance with the foregoing provisions of this Section 3.13,
unless, in respect of a class of Certificates other than the Class
Certificates, the relevant Certificate Issuance Order provides otherwise.
Upon the issuance of Definitive Certificates, the Owner Trustee shall
recognize the Holders of such Definitive Certificates as
Certificateholders.
Section 3.14 Seller as Certificateholder. The Seller in its
individual or any other capacity may become the owner or pledgee of
Certificates and may otherwise deal with the Owner Trustee or its
Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not take action with respect to
the following matters, unless: (i) the Owner Trustee shall have notified
the Certificateholders in writing of the proposed action at least 30 days
before the taking of such action, and (ii) the Certificateholders shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Certificateholders have withheld consent or
provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on a Receivable or an action by the Indenture
Trustee pursuant to the Indenture) and the compromise of any action, claim
or lawsuit brought by or against the Trust (other than an action to collect
on a Receivable or an action by the Indenture Trustee pursuant to the
Indenture);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as
Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders (it being understood that the issuance of additional
Certificates as contemplated by Section 3.3 shall not be deemed to
materially adversely affect the interests of the Certificateholders);
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor 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 or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable.
Section 4.2 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
Administrator under the Administration Agreement pursuant to Section 10
thereof, (b) appoint a successor Administrator pursuant to Section 10 of
the Administration Agreement, (c) remove the Servicer under the Trust Sale
and Servicing Agreement pursuant to Section 8.2 thereof or (d) except as
expressly provided in the Basic Documents, sell the Receivables transferred
to the Trust pursuant to the Trust Sale and Servicing Agreement or any
interest therein after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon the
affirmative vote of, or a written consent signed by, the holders of a
majority of the Voting Interests upon at least 30 days prior notice
thereof.
Section 4.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust without the
unanimous prior approval of all Holders of Certificates (including the
Seller) and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent. By its acceptance of any
Certificate issued to it on any Closing Date, the Seller agrees that it, at
any time that it is the holder thereof, shall not approve or be deemed to
have approved the commencement of a voluntary proceeding in bankruptcy
relating to the Trust for purposes of this Section 4.3 unless such
commencement is approved by the affirmative vote of all of the members of
the Seller's board of directors.
Section 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the Basic Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
Section 4.5 Majority Control. Except as expressly provided herein,
any action that may be taken or consent that may be given or withheld by
the Certificateholders under this Agreement shall be effective if such
action is taken or such consent is given or withheld by the Holders of
Certificates evidencing not less than a majority of the Voting Interests
thereof. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority of
the Voting Interests at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account.
(a) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Owner Trustee an Eligible Deposit
Account known as the Certificate Distribution Account (the "Certificate
Distribution Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. The Certificate Distribution Account shall initially be
established with .
(b) The Owner Trustee shall possess all right, title and interest
in and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof (except Investment
Proceeds therefrom as set forth in the Trust Sale and Servicing Agreement)
for the benefit of the Certificateholders. Except as otherwise provided
herein or in the Trust Sale and Servicing Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of the
Owner Trustee 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 Servicer 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 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments
to such new Certificate Distribution Account.
Section 5.2 Application of Trust Funds.
(a) On each Certificate Payment Date, the Owner Trustee shall
distribute to the Certificateholders the amounts deposited in the
Certificate Distribution Account pursuant to Section 4.5 of the Trust Sale
and Servicing Agreement with respect to such Certificate Payment Date: (i)
to the extent of the amount deposited with respect to Aggregate
Certificateholders' Interest, pro rata based upon the amount of interest
due with respect to each Certificate and (ii) to the extent of any amount
deposited with respect to Aggregate Certificateholder's Principal, on a pro
rata basis.
(b) On each Certificate Payment Date, the Owner Trustee shall
include with each distribution to each Certificateholder the statement
provided to the Owner Trustee by the Servicer pursuant to Section 4.8 of
the Trust Sale and Servicing Agreement in respect of such Certificate
Payment Date setting forth, among other things, the amount of the
distribution allocable to Certificate Balance and to interest, the
Certificate Balance after giving effect to such distribution, the balance
of the Reserve Fund (and amounts, if any, distributed from the Reserve
Fund), and the Monthly Servicing Fee with respect to the Certificate
Payment Date or the related Collection Period, as applicable, each since
the last statement so provided to such Certificateholders; provided that no
such statement shall be required to be sent by the Owner Trustee so long as
the Seller is the sole Certificateholder.
(c) If any withholding tax is imposed on the Trust's distribution
(or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.2; provided that the Owner Trustee shall not have an
obligation to withhold any such amount so long as the Seller is the sole
Certificateholder. The Owner Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not prevent the Owner Trustee from
contesting any such tax in appropriate proceedings and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings).
The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to
the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Owner Trustee may in its
sole discretion withhold such amounts in accordance with this subsection
5.2(c). If a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
(d) If the Indenture Trustee holds escheated funds for payment to
the Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee
shall, upon notice from the Indenture Trustee that such funds exist, submit
on behalf of the Trust an Issuer Order to the Indenture Trustee pursuant to
Section 3.3(e) of the Indenture instructing the Indenture Trustee to pay
such funds to or at the order of the Seller.
Section 5.3 Method of Payment. Subject to Section 7.1(c) and
subject to the right of the Owner Trustee and the Clearing Agency to agree
otherwise in the case of Book Entry Certificates, distributions required to
be made to Certificateholders of any class on any Certificate Payment Date
shall be made to each Certificateholder of record of such class on the
related Record Date either by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Record Date, or, if not, by check
mailed to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
Section 5.4 Accounting and Reports to the 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
on the accrual method of accounting, (b) deliver to each Certificateholder,
as may be required by the Code and applicable Treasury Regulations or
otherwise, such information as may be required to enable each
Certificateholder to prepare its federal income tax return, (c) file such
tax returns relating to the Trust and make such elections as may from time
to time be required or appropriate under any applicable state or federal
statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax purposes, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with subsection 5.2(c) with respect to income or distributions
to Certificateholders. In preparing and filing tax returns for the Trust,
the Owner Trustee shall allocate taxable income of the Trust for each
Collection Period in the following manner: (i) to the Certificateholders,
an amount equal to the sum of: (A) interest distributable on the
Certificates on the Certificate Payment Date related to such Collection
Period and (B) any Trust income attributable to discount on the Receivables
that corresponds to any excess of the Certificate Balance of the
Certificates over their initial issue price; and (ii) to the Seller, if and
to the extent that the taxable income of the Trust for such Collection
Period exceeds the amount computed under (i) above. Unless otherwise
permitted or required by any applicable law or regulation, the Owner
Trustee shall allocate amounts of taxable income of the Trust for a
particular Collection Period among the Certificateholders in proportion to
the Certificate Balance owned by them as of the Record Date for the related
Certificate Payment Date.
Section 5.5 Signature on Returns; Tax Matters Partner. Subject to
Section 2.11, the Owner Trustee shall sign on behalf of the Trust any and
all tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents
shall be signed by the Seller. The Seller shall be the "tax matters
partner" of the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Agreement and the other
Basic Documents, including the administration of the Trust in the interest
of the Certificateholders, subject to the Basic Documents and in accordance
with the provisions of this Agreement. No implied covenants or obligations
shall be read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in determining
the truth of the statements and the correctness of the opinions contained
therein; provided, however, that the Owner Trustee shall have examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that: (i) this subsection 6.1(d) shall not limit the
effect of subsection 6.1(a) or (b); (ii) the Owner Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts; and (iii) the Owner Trustee shall not be
liable with respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to Section 4.1, 4.2
or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Trust 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.
(f) The Owner Trustee shall not take any action that: (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or
(ii) would, to the actual knowledge of a Responsible Officer of the Owner
Trustee, result in the Trust's becoming taxable as a corporation for
federal income tax purposes.
(g) The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section 6.1.
Section 6.2 Rights of Owner Trustee. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents 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 such form as
the Seller shall approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator
recommends with respect to the Basic Documents.
Section 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created, acts
solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
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 monies
actually received by it constituting part of the Owner Trust Estate upon
the terms of the Basic Documents and this Agreement. The Owner Trustee
shall not be liable or accountable hereunder or under any Basic Document
under any circumstances, except: (i) for its own negligent action, its own
negligent failure to act or its own willful misconduct or (ii) in the case
of the inaccuracy of any representation or warranty contained in Section
6.6 and expressly made by the Owner Trustee. In particular, but not by way
of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability
of any Receivable held by the Trust, or the perfection and priority of any
security interest created by any such Receivable in any Vehicle or the
maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Owner Trust Estate or its ability to generate the
distributions and payments to be made to Certificateholders under this
Agreement or to Noteholders under the Indenture, including, without
limitation: (i) the existence and contents of any such Receivable on any
computer or other record thereof; (ii) the validity of the assignment of
any such Receivable to the Trust or of any intervening assignment; (iii)
the completeness of any such Receivable; (iv) the performance or
enforcement of any such Receivable; (v) the compliance by the Seller or the
Servicer with any warranty or representation made under any Basic Document
or in any related document or (vi) the accuracy of any such warranty or
representation or any action of the Administrator, the Trustee or the
Servicer or any subservicer taken in the name 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 Administrator 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 or the Certificate
Balance of and interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the Seller
or for the form, character, genuineness, sufficiency, value or validity of
any of the Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates (other than
the certificate of authentication on the Certificates) or of any
Receivables held by the Trust or any related documents, and the Owner
Trustee shall in no event assume or incur any liability, duty or obligation
to any Noteholder or to any Certificateholder, other than as expressly
provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer 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 Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Pooling and
Servicing Agreement or the Trust 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 or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement or in any Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of any such act.
Section 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4, 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 Section 4.5.
(b) Notwithstanding the foregoing, 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 any Basic Document, or is unsure as to the application,
intent, interpretation or meaning of any provision of this Agreement or the
Basic Documents, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and, to
the extent the Owner Trustee acts in good faith in accordance with any such
instruction 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 instructions within ten 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 which is consistent, in its
view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee
shall have no liability to any Person for any such action or inaction.
Section 6.5 Furnishing of Documents. The Owner Trustee shall
furnish: (a) 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 and (b) to the
Noteholders and the Certificateholders, promptly upon receipt of a written
request therefor, copies of the Pooling and Servicing Agreement, the Trust
Sale and Servicing Agreement, the Administration Agreement, the Custodian
Agreement and this Agreement.
Section 6.6 Representations and Warranties of Owner Trustee. The
Owner Trustee hereby represents and warrants to the Seller, for the benefit
of the Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
The eligibility requirements set forth in Section 6.13 are satisfied with
respect to it.
(c) The execution, delivery and performance by it of this
Agreement: (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Owner Trustee or any order,
writ, judgment or decree of any court, arbitrator or governmental authority
applicable to the Owner Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or by-laws of the Owner
Trustee or (iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation
or imposition of any lien on any properties included in the Trust pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as Owner Trustee
under this Agreement or on the transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee
of this Agreement shall not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the taking
of any other action in respect of, any Governmental Authority regulating
the banking and corporate trust activities of banks or trust companies in
the jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of the
Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a resolution of
the board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
the Owner Trustee may for all purposes hereof rely on a certificate, signed
by the president or any vice president or by the treasurer 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, attorneys, custodians or nominees 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, attorneys, custodians or nominees if
such agents, attorneys, custodians or nominees shall have been selected by
the Owner Trustee with reasonable care; and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons
and not contrary to this Agreement or any Basic Document.
Section 6.8 Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in transactions in
the same manner as it would have if it were not the Owner Trustee.
Section 6.9 Compensation and Indemnity. 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 Seller and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
custodians, nominees, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder. The Servicer shall indemnify the Owner
Trustee and its successors, assigns, agents and servants in accordance with
the provisions of Section 7.1 of the Trust Sale and Servicing Agreement.
The indemnities contained in this Section 6.9 shall survive the resignation
or termination of the Owner Trustee or the termination of this Agreement.
Any amounts paid to the Owner Trustee pursuant to this Article VI shall be
deemed not to be a part of the Owner Trust Estate immediately after such
payment.
Section 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may at any time give notice of its intent to
resign and be discharged from the trusts hereby created by giving written
notice thereof to the Administrator; provided that no such resignation
shall become effective, and the Owner Trustee shall not resign, prior to
the time set forth in Section 6.10(c). The Administrator may appoint a
successor Owner Trustee by delivering written instrument, in duplicate, to
the resigning Owner Trustee and the successor Owner Trustee. If no
successor Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice, the resigning
Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to
resign after written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed
or take charge or control of the Owner Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of
acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy
exists in the office of Owner Trustee for any reason the Administrator
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.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section 6.10 shall not become effective, and no such resignation
shall be deemed to have occurred, until a written acceptance of appointment
is delivered by the successor Owner Trustee to the outgoing Owner Trustee
and the Administrator, and all fees and expenses due to the outgoing Owner
Trustee are paid. Any successor Owner Trustee appointed pursuant to this
Section 6.10 shall be eligible to act in such capacity in accordance with
Section 6.13 and, following compliance with the preceding sentence, 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 Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
(d) 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. The Administrator
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.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
Section 6.11 Merger or Consolidation of Owner Trustee. Any Person
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 Person succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such Person shall be eligible pursuant to Section 6.13,
and without the execution or filing of any instrument or any further act on
the part of any of the parties hereto; provided, however, that the Owner
Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Owner Trust Estate or any of the Dealers may at
the time be located, the Administrator and the Owner Trustee acting jointly
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
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 6.12, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as a successor trustee
pursuant to Section 6.13 and no notice of the appointment of any co-trustee
or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the 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 or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
(d) 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 trustee.
Section 6.13 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times satisfy the requirements of Section 26(a)(1) of
the Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Business
Trust Statute; (b) be authorized to exercise corporate trust powers; (c)
have an aggregate capital, surplus and undivided profits of at least
$50,000,000 and be subject to supervision or examination by federal or
state authorities; and (d) have (or have a parent which has) a long-term
unsecured debt rating of at least [ ] by S&P and at least Baa3 by ▇▇▇▇▇'▇.
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 6.13, the
aggregate capital, surplus and undivided profits of such corporation shall
be deemed to be its aggregate capital, surplus and undivided profits as set
forth in its most recent report of condition so published. If at any time
the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.13, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) The Trust shall terminate in accordance with Section 3808 of
the Business Trust Statute on the date (the "Trust Termination Date") on
which the first of the following occurs: (i) if the Seller so elects, the
day following the Certificate Payment Date on which all amounts required to
be paid to the Securityholders pursuant to the Basic Documents have been
paid (or deposited in the related Distribution Account and the aggregate
Outstanding Amount of the Revolving Notes is zero and (ii) the Specified
Trust Termination Date. This Agreement and the obligations of the parties
hereunder (other than Section 6.9 hereof and as otherwise expressly
provided herein) shall terminate and be of no further force or effect: (x)
if the Trust Termination Date is determined pursuant to clause (i) above,
on the Trust Termination Date and (y) if the Trust Termination Date is
determined pursuant to clause (ii) above on the date following the
Certificate Payment Date on which the final payments to be made to the
Securityholders pursuant to the Basic Documents have been paid (or
deposited in the appropriate Distribution Accounts).
(b) The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not: (x) operate to terminate this Agreement
or the Trust, nor (y) 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 the Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto. Except as provided in
Section 7.1(a), neither the Seller 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
Certificate Payment Date upon which the Certificateholders shall surrender
their Certificates to the Paying Agent for distribution of the final
distribution and cancellation, shall be given by the Owner Trustee by
letter to Certificateholders mailed within five Business Days of receipt of
notice of such termination from the Servicer given pursuant to Section 9.4
of the Trust Sale and Servicing Agreement, stating: (i) the Certificate
Payment Date upon or with respect to which the final distribution of the
Certificate Balance of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
designated; (ii) the amount of any such final distribution of the
Certificate Balance; and (iii) that the Record Date otherwise applicable to
such Certificate Payment Date is not applicable, distributions being made
only upon presentation and surrender of the 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 Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Certificate Payment Date pursuant to Section 5.2.
(d) Notice of any termination of the Trust specifying the
Certificate Payment Date upon which the Certificateholders shall surrender
their Certificates to the Paying Agent for distribution of the final
distribution and cancellation, shall be given by the Owner Trustee by
letter to Certificateholders mailed within five Business Days of receipt of
notice of such termination from the Servicer given pursuant to Section 9.4
of the Trust Sale and Servicing Agreement, stating: (i) the Certificate
Payment Date upon or with respect to which the final distribution of the
Certificate Balance of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
designated; (ii) the amount of any such final distribution of the
Certificate Balance; and (iii) that the Record Date otherwise applicable to
such Certificate Payment Date is not applicable, distributions being made
only upon presentation and surrender of the 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 Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Certificate Payment Date pursuant to Section 5.2. The Seller shall have the
beneficial interest in any assets remaining in the Trust following final
payment of the Certificates.
(e) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the written notice specified in subsection 7.1(c), the Owner Trustee shall
give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the 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 Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Trust after exhaustion of such
remedies in the preceding sentence shall be deemed property of the Seller
and distributed by the Owner Trustee to the Seller and the Owner Trustee
shall have no further liability to the Certificateholders with respect
thereto.
(f) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing
a certificate of cancellation with the Secretary of State in accordance
with the provisions of Section 3810 of the Business Trust Statute.
Section 7.2 [Reserved].
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments Without Consent of Securityholders. This
Agreement may be amended by the Seller and the Owner Trustee without the
consent of any of the Securityholders (but with prior notice to the Rating
Agencies) to:
(i) cure any ambiguity,
(ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision in
this Agreement,
(iii) add or supplement any credit, liquidity or other
enhancement arrangement for the benefit of any Securityholders
(provided that if any such addition shall affect any series or
class of Securityholders differently than any other series or
class of Securityholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any series or class of
Securityholders),
(iv) add to the covenants, restrictions or obligations of the
Seller or the Owner Trustee for the benefit of the
Securityholders,
(v) evidence and provide for the acceptance of the
appointment of a successor trustee with respect to the Owner Trust
Estate and add to or change any provisions as shall be necessary
to facilitate the administration of the trusts hereunder by more
than one trustee pursuant to Article VI,
(vi) restrict transfers of Certificates (or interests
therein) or as otherwise required to prevent the Trust from being
treated as a "publicly traded partnership" under Section 7704 of
the Code,
(vii) to add provisions to or delete or modify the existing
provisions of this Agreement as appropriate to allow the Trust to
issue foreign currency-denominated Notes, or
(viii) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion
of Counsel, materially and adversely affect the interests of the
Securityholders.
Section 8.2 Amendments With Consent of Certificateholders and
Noteholders. This Agreement may be amended from time to time by the Seller
and the Owner Trustee with the consent of Noteholders whose Notes evidence
not less than a majority of the Outstanding Amount of the Notes as of the
close of business on the preceding Monthly Certificate Payment Date and the
consent of Certificateholders whose Certificates evidence not less than a
majority of the Voting Interests as of the close of business on the
preceding Monthly Certificate Payment Date (which consent, whether given
pursuant to this Section 8.2 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on all future
Holders of such Notes or Certificates and of any Notes or Certificates
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Notes or
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, distributions that shall be required to be made on
any Security without the consent of the Holder thereof (it being understood
that the issuance of any Securities after the Initial Closing Date as
contemplated by this Agreement, the Trust Sale and Servicing Agreement and
the Indenture and the specification of the terms and provisions thereof
pursuant to a Certificate Issuance Order (with respect to any Certificates)
or an Officer's Issuance Certificate (with respect to any Notes) shall not
be deemed to have such effect for purposes hereof),
(b) adversely effect the rating of any series or class of
Securities without the consent of the Holders of two-thirds of the
Outstanding Amount of such series of Notes or the Voting Interests with
respect to such class of Certificates, as appropriate or
(c) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the Holders of all of the Notes and
all of the Voting Interests with respect to Certificates then outstanding.
Prior to the execution of any such amendment, supplement or
consent, the Owner Trustee shall furnish written notification of the
substance of such amendment, supplement or consent to the Rating Agencies.
Section 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Securityholders
or the Indenture Trustee pursuant to Section 8.2 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 Securityholders provided for in
this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Securityholders shall be subject
to such reasonable requirements as the Owner Trustee may prescribe.
(c) 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.
(d) 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. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner
Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and VII. No transfer, by operation of
law or otherwise, of any right, title, and interest of the
Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
Section 9.2 Limitations on Rights of Others. Except for Section
2.7, Section 7.1(c) and Section 9.13, the provisions of this Agreement are
solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Administrator 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 Owner
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 9.3 Derivative Actions. Any provision contained herein to
the contrary notwithstanding, the right of any Certificate Owner to bring a
derivative action in the right of the Trust is hereby made expressly
subject to the following limitations and requirements:
(a) such Certificate Owner must meet all requirements set forth in
the Business Trust Statute; and
(b) no Certificate Owner may bring a derivative action in the
right of the Trust without the prior written consent of Certificate Owners
owning, in the aggregate, a beneficial interest in Certificates
representing 50% of the then outstanding Certificate Balance.
Section 9.4 Notices.
(a) All demands, notices and communications upon or to the Seller,
the Servicer, the Administrator, the Indenture Trustee, the Owner Trustee
or the Rating Agencies under this Agreement shall be delivered as specified
in Appendix B to the Trust Sale and Servicing Agreement.
(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 Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent
permitted, and if not so permitted, shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 9.6 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 9.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Seller, the Owner Trustee and each Certificateholder and their respective
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 9.8 No Petition Covenants. The Owner Trustee by entering
this Trust Agreement and each Certificateholder, by accepting a Certificate
(or interest therein) issued hereunder, hereby covenants and agrees that
they shall not, prior to the day that is one year and one day after the
termination of the Trust, acquiesce, petition or otherwise invoke or cause
the Seller or the Trust to invoke in any court or government authority for
the purpose of commencing or sustaining a case against the Seller or the
Trust under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Trust or any
substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Seller or the Trust.
Section 9.9 No Recourse. Each Certificateholder and Certificate
Owner, by accepting a Certificate (or interest therein), shall agree that
such Person's Certificates (or interest therein) represent beneficial
interests in the Trust only and do not represent interests in or
obligations of the Seller, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof and no recourse,
either directly or indirectly, may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents. Except as expressly
provided in the Basic Documents, neither the Seller, the Servicer nor the
Owner Trustee in their respective individual capacities, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees
or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the distribution of Certificate Balance
with respect to or interest on, or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in the
Certificates or this Agreement, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner
Trustee solely as the Owner Trustee in the assets of the Issuer. Each
Certificateholder or Certificate Owner by the acceptance of a Certificate
(or beneficial interest therein) shall agree that, except as expressly
provided in the Basic Documents, in the case of nonpayment of any amounts
with respect to the Certificates, it shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom.
Section 9.10 Headings. The headings herein are for purposes of
reference only and shall not affect the meaning or interpretation of any
provision hereof.
Section 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF
OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.12 Certificate Transfer Restrictions.
(a) The Certificates (or interests therein) may not be acquired by
or for the account of a Benefit Plan unless the Benefit Plan acquiring a
Certificate (or interest therein) has available to it an exemption from the
prohibited transaction rules under Section 406(a) of ERISA and Section 4975
of the Code and such exemption is applicable to the purchase and holding of
the Certificate (or interest therein). Unless the Seller determines that
such an exemption is available, by accepting and holding a Certificate (or
interest therein), the Holder thereof and any related Certificate Owner
shall each be deemed to have represented and warranted that it is not a
Benefit Plan and, if requested to do so by the Seller pursuant to Section
3.4(b), the Certificateholder and the Certificate Owner shall execute and
deliver to the Owner Trustee an Undertaking Letter in the form set forth in
Exhibit C. The Certificates are also subject to the minimum denomination
specified in Section 3.4(a).
(b) The Certificates will not be registered under the Securities
Act or the securities or blue sky laws of any other jurisdiction.
Consequently, the Certificates are not transferable other than pursuant to
an exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein. No sale, pledge
or other transfer of the Certificates (or interest therein) may be made by
any Person unless either: (i) such sale, pledge or other transfer is made
to the Seller, (ii) so long as the Certificates are eligible for resale
pursuant to Rule 144A under the Securities Act, such sale, pledge or other
transfer is made to a person whom the transferor reasonably believes after
due inquiry is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act (a "Qualified Institutional Buyer") 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 sale, pledge or transfer is being made in
reliance on Rule 144A under the Securities Act, or (iii) such sale, pledge
or other transfer is otherwise made in a transaction exempt from the
registration requirements of the Securities Act, in which case: (A) the
Owner Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Seller in
writing the facts surrounding such transfer, which certification shall be
in form and substance satisfactory to the Owner Trustee and the Seller, and
(B) the Owner Trustee shall require a written opinion of counsel (which
will not be at the expense of the Seller or the Owner Trustee) satisfactory
to the Seller and the Owner Trustee to the effect that such transfer will
not violate the Securities Act. No sale, pledge or other transfer may be
made to any one person for Certificates with a face amount of less than $[
] (or such other amount as the Seller may determine in order to prevent the
Trust from being treated as a "publicly traded partnership" under Section
7704 of the Code, but in no event less than $[ ]) and, in the case of any
Person acting on behalf of one or more third parties (other than a bank (as
defined in Section 3(a)(2) of the Securities Act) acting in its fiduciary
capacity), for Certificates with a face amount of less than such amount for
each such third party. Any attempted transfer in contravention of the
immediately preceding restriction will be void ab initio and the purported
transferor will continue to be treated as the owner of the Certificates for
all purposes. Neither the Seller nor the Owner Trustee shall be obligated
to register the Certificates under the Securities Act, qualify the
Certificates under the securities laws of any state or provide registration
rights to any purchaser or holder thereof.
(c) Each Certificate shall bear a legend to the effect set forth
in subsections (a) and (b) above.
(d) The Seller shall be responsible for determining compliance
with the restrictions set forth in this Section 9.12.
Section 9.13 Indemnification by and Reimbursement of the Servicer.
The Owner Trustee acknowledges and agrees to reimburse: (i) the Servicer
and its directors, officers, employees and agents in accordance with
Section 7.3(b) of the Trust Sale and Servicing Agreement and (ii) the
Seller and its directors, officers, employees and agents in accordance with
Section 3.4 of the Trust Sale and Servicing Agreement. The Owner Trustee
further acknowledges and accepts the conditions and limitations with
respect to the Servicer's obligation to indemnify, defend and hold the
Owner Trustee harmless as set forth in Section 7.1(a) of the Trust Sale and
Servicing Agreement.
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.
[ ], as Owner Trustee
By:_________________________________________
Name:
Title:
GS Mortgage Securities Corp., as Seller
By:_________________________________________
Name:
Title:
EXHIBIT A
FORM OF CLASS CERTIFICATE
$------------
R_____ CUSIP NO. ____
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF _________, A [STATE] CORPORATION _________, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF ________ TRANSFER, EXCHANGE OR
DISTRIBUTION, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
_________ (AND ANY DISTRIBUTION IS MADE TO _________ OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF _________), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, _________, HAS
AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OF
AMERICA OR ANY FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS
CERTIFICATE (OR INTEREST THEREIN) THE HOLDER (OR OWNER) OF THIS CERTIFICATE
(OR SUCH INTEREST) IS DEEMED TO REPRESENT TO _________ OR ITS ASSIGNEE OR
SUCCESSOR (THE "SELLER") AND THE OWNER TRUSTEE THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND
IS ACQUIRING THIS CERTIFICATE (OR INTEREST THEREIN) 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).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE (OR INTEREST
THEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER: (i) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO THE SELLER, (ii) SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH
SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES 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 SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iii) SUCH
SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN WHICH CASE:
(A) THE OWNER TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR
AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE OWNER TRUSTEE AND THE SELLER
IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL
BE IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND THE SELLER,
AND (B) THE OWNER TRUSTEE SHALL REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH
SHALL NOT BE AT THE EXPENSE OF THE SELLER OR THE OWNER TRUSTEE)
SATISFACTORY TO THE SELLER AND THE OWNER TRUSTEE TO THE EFFECT THAT SUCH
TRANSFER WILL NOT VIOLATE THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER
TRANSFER MAY BE MADE TO ANY ONE PERSON FOR CERTIFICATES WITH A FACE AMOUNT
OF LESS THAN $_________ (OR SUCH OTHER AMOUNT AS THE SELLER MAY DETERMINE
IN ORDER TO PREVENT THE TRUST FROM BEING TREATED AS A "PUBLICLY TRADED
PARTNERSHIP" UNDER SECTION 7704 OF THE UNITED STATES INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE " CODE"), BUT IN NO EVENT LESS THAN $_________ )
AND, IN THE CASE OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD
PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE SECURITIES
ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR CERTIFICATES WITH A FACE AMOUNT
OF LESS THAN SUCH AMOUNT FOR EACH SUCH THIRD PARTY. ANY ATTEMPTED TRANSFER
IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTION WILL BE VOID AB
INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE
OWNER OF THE CLASS CERTIFICATES FOR ALL PURPOSES.
THIS CERTIFICATE (OR AN INTEREST THEREIN) MAY NOT BE ACQUIRED BY
OR FOR THE ACCOUNT OF: (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN
SECTION 3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE
I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, OR
(iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY (EACH A "BENEFIT PLAN"), UNLESS THE SELLER
DETERMINES THAT THE BENEFIT PLAN ACQUIRING THIS CERTIFICATE, (OR AN
INTEREST THEREIN) HAS AVAILABLE TO IT AN EXEMPTION FROM THE PROHIBITED
TRANSACTION RULES UNDER SECTION 406(a) OF ERISA AND SECTION 4975 OF THE
CODE AND SUCH EXEMPTION IS APPLICABLE TO THE PURCHASE AND HOLDING OF THIS
CERTIFICATE (OR AN INTEREST THEREIN). UNLESS THE SELLER DETERMINES THAT
SUCH AN EXEMPTION IS AVAILABLE, BY ACCEPTING AND HOLDING THIS CERTIFICATE
(OR AN INTEREST THEREIN), THE HOLDER HEREOF AND ANY RELATED CERTIFICATE
OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
A BENEFIT PLAN AND, IF REQUESTED TO DO SO BY THE SELLER, SUCH PERSON SHALL
EXECUTE AND DELIVER TO THE OWNER TRUSTEE AN UNDERTAKING LETTER TO SUCH
EFFECT IN THE FORM SPECIFIED IN THE TRUST AGREEMENT.
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY ACCEPTING THIS
CERTIFICATE (OR INTEREST THEREIN): (i) EXPRESSES ITS INTENTION THAT THE
CERTIFICATES WILL QUALIFY UNDER APPLICABLE TAX LAW AS PARTNERSHIP INTERESTS
IN A PARTNERSHIP, WITH THE ASSETS OF THE PARTNERSHIP BEING THE ASSETS HELD
BY THE TRUST, AND (ii) UNLESS OTHERWISE REQUIRED BY APPROPRIATE TAXING
AUTHORITIES, AGREES TO TREAT THE CLASS CERTIFICATES AS INTERESTS IN SUCH A
PARTNERSHIP FOR PURPOSES OF FEDERAL INCOME, STATE AND LOCAL INCOME AND
FRANCHISE TAXES, _________ SINGLE BUSINESS TAX AND ANY OTHER TAXES IMPOSED
UPON, MEASURED BY OR BASED UPON GROSS OR NET INCOME.
EACH CERTIFICATEHOLDER OR CERTIFICATE OWNER, BY ITS ACCEPTANCE OF
THIS CERTIFICATE (OR INTEREST THEREIN), COVENANTS AND AGREES THAT SUCH
CERTIFICATEHOLDER OR CERTIFICATE OWNER, AS THE CASE MAY BE, SHALL NOT,
PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF
THE TRUST AGREEMENT, ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE
SELLER TO INVOKE THE PROCESS OF ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE
PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE SELLER UNDER ANY
FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAW OR
APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN,
SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE SELLER OR ANY SUBSTANTIAL
PART OF ITS PROPERTY, OR ORDERING THE WINDING-UP OR LIQUIDATION OF THE
AFFAIRS OF THE SELLER.
FLOATING RATE ASSET BACKED CERTIFICATE, CLASS ______
Evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of wholesale
receivables generated from time to time in a portfolio of revolving
financing arrangements with dealers to finance automobile and other vehicle
inventories and collections thereon and certain other property.
(This Certificate does not represent an interest in or obligation
of __________________, ________________________, ______________________,
the Owner Trustee or any of their respective affiliates, except to the
extent described in the Basic Documents.)
THIS CERTIFIES THAT is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in ___________________ (the
"Trust") formed by _____________________, a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of
_____, 200_ (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and , as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust
Agreement.
This Certificate is one of the duly authorized Certificates
designated as "Floating Rate Asset Backed Certificates, " (the
"Certificates"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, the terms of which
are incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the __th
day of each ________, _________, _________ and __________ or, if such __th
day is not a Business Day, the next succeeding Business Day, commencing on
_______, 200_ (each, a "Certificate Payment Date"), to the person in whose
name this Certificate is registered on the related Record Date (as defined
below), interest accrued hereon to the extent of funds available therefor
and such Certificateholder's fractional undivided interest in the amount of
distributions in respect of Certificate Balance to be distributed to
Certificateholders on such Certificate Payment Date. Interest shall accrue
on this Certificate at the applicable Certificate Rate (as set forth on the
reverse hereof) on the Certificate Balance represented by this Certificate
(without reduction for any unreimbursed Trust Charge-Offs), and interest
accrued hereon as of any Certificate Payment Date but not distributed on
such Certificate Payment Date shall be due on the next Certificate Payment
Date. No distributions of Certificate Balance shall be made on any
Certificate until all Notes have been paid (or provided for) in full. The
entire unpaid Certificate Balance on this Certificate shall be due and
payable on the Certificate Payment Date in ______ (the "Stated Final
Payment Date"). However, the actual distribution in full of the Certificate
could occur sooner or later than such date. The "Record Date," with respect
to any Certificate Payment Date, means the last day of the preceding
Collection Period.
The distributions in respect of Certificate Balance and interest
on this Certificate are payable in such coin or currency of the United
States of America as at the time of distribution is legal tender for
payment of public and private debts. All distributions made by the Trust
with respect to this Certificate shall be applied first to interest due and
payable on this Certificate as provided above and then to the unpaid
distributions in respect of Certificate Balance of this Certificate.
The Holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as and to the extent
described in the Trust Sale and Servicing Agreement and the Indenture.
Each Certificateholder or Certificate Owner, by its acceptance of
a Certificate (or interest therein), covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, shall not,
prior to the date which is one year and one day after the termination of
the Trust Agreement, acquiesce, petition or otherwise invoke or cause the
Seller to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Seller under any
federal or state bankruptcy, insolvency, reorganization or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial
part of its property, or ordering the winding-up or liquidation of the
affairs of the Seller. By its acceptance of this Certificate, the Seller
agrees that it shall not be deemed to have approved the commencement of a
voluntary proceeding in bankruptcy relating to the Trust for purposes of
Section 4.3 of the Trust Agreement unless such commencement was
approved by the affirmative vote of all of the members of the Seller's
board of directors.
Distributions on this Certificate shall be made as provided in the
Trust Agreement without the presentation or surrender of this Certificate
or the making of any notation hereon, to each Certificateholder of record
on the immediately preceding Record Date either by wire transfer, in
immediately available funds, to the account of such Holder at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Record Date, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register. Except as
otherwise provided in the Trust Agreement and notwithstanding the above,
the final distribution on this Certificate shall be made after due notice
by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office maintained for
such purpose by the Owner Trustee in the City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Trust Sale and Servicing Agreement or be valid
for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF _______, WITHOUT REFERENCE TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly
executed.
Dated: ________________, 20__
By: ________________________________, not in
its individual capacity but solely as Owner
Trustee
By:__________________________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
____________________ , ____ OR ____________________ , ____
____________________________ ____________________________
not in its individual capacity but not in its individual capacity
solely as Owner Trustee but solely as Owner Trustee by
_________________________, as
Authenticating Agent
By: _________________________ By: ___________________________
Name: _________________________ Name: _________________________
Title: _________________________ Title: ________________________
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest
in, the Seller, the Servicer, _________, the Indenture Trustee, the Owner
Trustee or any affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this 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 held by the Trust (and
certain other amounts), all as more specifically set forth herein, in the
Trust Agreement and the Trust Sale and Servicing Agreement. A copy of each
of the Trust Sale and Servicing Agreement and the Trust Agreement may be
examined during normal business hours at the principal office of the
Seller, and at such other places, if any, designated by the Seller, by any
Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under
the Trust Agreement at any time by the Seller and the Owner Trustee with
the consent of the Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of business
on the preceding Monthly Certificate Payment Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of
the Voting Interests as of the close of business on the preceding Monthly
Certificate Payment Date. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement
also permits the amendment thereof, in certain circumstances, without the
consent of the Holders of any of the Certificates or the Notes.
The term "Certificate Rate" as used in this Certificate means,
with respect to any Certificate Payment Date, the product of: (i) a
fraction, the numerator of which is the number of days elapsed from and
including the prior Certificate Payment Date (or, in the case of the first
Certificate Payment Date, from and including the Initial Closing Date) to
but excluding such Certificate Payment Date and the denominator of which is
360 and (ii) USD Three-Month LIBOR plus ___%, or if the certificates are
not paid in full on their Targeted Final Payment Date, USD One-Month LIBOR
plus ___%.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in the City of _______________,
accompanied by: (i) 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, (ii)
any certificate and/or Opinion of Counsel required by Section 9.12(b) of
the Trust Agreement, and (iii) if requested by the Seller, the Undertaking
Letter required by Section 9.12(a) of the Trust Agreement, and thereupon
one or more new Certificates of the same class of authorized denominations
evidencing the same aggregate interest in the Trust shall be issued to the
designated transferee.
The initial Certificate Registrar appointed under the Trust
Agreement is _____________________________.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $_____ or greater (or such other amount
as the Seller may determine in order to prevent the Trust from being
treated as a "publicly traded partnership" under Section 7704 of the Code,
but in no event less than $_____). As provided in the Trust Agreement and
subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same class of authorized
denominations evidencing the same aggregate denomination, as requested by
the Holder surrendering the same; provided, however, that no Certificate
may be subdivided upon transfer or exchange in a manner such that the
resulting Certificate if it had been sold in the original offering would
have had an initial offering price of less than $_____ (or such other
amount as the Seller may determine in order to prevent the Trust from being
treated as a "publicly traded partnership" under Section 7704 of the Code,
but in no event less than $_____). No service charge shall 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 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
distribution to Certificateholders of all amounts required to be paid to
them pursuant to the Trust Agreement and the Trust Sale and Servicing
Agreement and the disposition of all property held as part of the Trust.
CERTIFICATE OF TRANSFER
OR 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 Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing _________________________ Attorney
to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
In connection with any sale, pledge or transfer of this
Certificate the undersigned hereby represents to the Owner Trustee and the
Seller that such sale, pledge or transfer is being made to a person whom
the undersigned reasonably believes after due inquiry is a "qualified
institutional buyer" (as defined in Rule 144A under the United States
Securities Act of 1933, as amended) 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.
If such sale, pledge or other transfer is being made pursuant to
(a) above, the undersigned acknowledges that such institutional investor
must execute a certificate substantially in the form specified in the Trust
Agreement.
Dated: * Signature Guaranteed: *
* NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
THIS Certificate of Trust of (the "Trust"), dated as of ________,
200_ , is being duly executed and filed by , a [state] banking corporation,
as trustee, to form a business trust under the Delaware Business Trust Act
(12 Del. C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is
_______________________.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is __________________________,
[Address].
3. This Certificate of Trust shall be effective on _________,
200_.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
__________________________, not in its
individual capacity but solely as
Owner Trustee under a Trust Agreement
dated as of _____________, 20__.
By:____________________________________
Name:
Title:
EXHIBIT C
UNDERTAKING LETTER
[ ]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our purchase or record or beneficial ownership
of one or more Floating Rate Asset Backed Certificates, (the
"Certificates") of , the undersigned purchaser, record owner or beneficial
owner hereby acknowledges, represents and warrants that such purchaser,
record owner or beneficial owner:
(1) is not, and has not acquired the Certificates by or for the
benefit of: (i) an employee benefit plan (as defined in Section 3(3) of the
United States Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a
plan described in Section 4975(e)(1) of the United States Internal Revenue
Code of 1986, as amended, or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in such entity; and
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our representations or warranties herein
cease to be accurate and complete.
Name of Certificateholder/Certificate Owner
By: ________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
EXHIBIT D
INVESTOR LETTER
[ ]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of a one or more Floating
Rate Asset-Backed Certificates, Class (the "Certificates"), representing a
fractional undivided interest in the ______, issued under a trust
agreement, dated as of _______, 200_ (the "Trust Agreement"), between , a
Delaware corporation (the "Seller") and ______, as owner trustee, acting
thereunder not in its individual capacity but solely as owner trustee of
the Trust (the "Owner Trustee"), we confirm that:
1. We understand that the Certificate has not been registered
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the following sentence.
We agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that such Certificates (or an interest
therein) may be resold, pledged or transferred only: (i) to the Seller,
(ii) so long as such Certificates are eligible for resale pursuant to Rule
144A under the Securities Act ("Rule 144A"), to a person whom the
transferor reasonably believes after due inquiry to be 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: (A) the Owner Trustee shall require that both the
prospective transferor and the prospective transferee certify to the Owner
Trustee and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the
Owner Trustee and the Seller, and (B) the Owner Trustee shall require a
written opinion of counsel (which will not be at the expense of the Seller
or the Owner Trustee) satisfactory to the Seller and the Owner Trustee 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 Certificates (or an
interest therein) from us of the above resale restrictions, if then
applicable. We further understand that in connection with any transfer of
the Certificates (or interest therein) by us that the Seller and the Owner
Trustee may request, and if so requested we will furnish, such
certification and other information as they may reasonably require to
confirm that any such transfer complies with the foregoing restrictions. We
understand that no sale, pledge or other transfer may be made to any one
person for Certificates (or an interest therein) with a face amount of less
than $______ (or such other amount as the Seller may determine in order to
prevent the Trust from being treated as a "publicly traded partnership"
under Section 7704 of the United States Internal Revenue Code of 1986, as
amended, but in no event less than $_______) and, in the case of any person
acting on behalf of one or more third parties (other than a bank (as
defined in Section 3(a)(2) of the Securities Act) acting in its fiduciary
capacity), for Certificates with a face amount of less than such amount for
each such third party. Any attempted transfer will be void ab initio and
the purported transferor will continue to be treated as the owner of the
Certificates for all purposes.
2. We are a "qualified institutional buyer" as defined under Rule
144A under the Securities Act and are acquiring the Certificates (or an
interest therein) 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 transferor of the Certificates (or an interest
therein) 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. 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:_______________________________________
Date:_____________________________________
EXHIBIT E
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]