EXHIBIT 4.4.7
FORM OF TRUST AGREEMENT AMONG THE DEPOSITOR, THE
SELLER AND THE TRUSTEE (EQUIPMENT SECURITIES)
TRUST AGREEMENT
between
GS Mortgage Securities Corp.
as Trust Depositor,
and
[ ]
as Owner Trustee
Dated as of [ ]
[ ] EQUIPMENT SECURITIES [ ]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Defined Terms Generally...................................................................1
Section 1.02 Specific Defined Terms....................................................................1
Section 1.03 Usage of Terms............................................................................3
Section 1.04 Section References........................................................................3
Section 1.05 Accounting Terms..........................................................................3
ARTICLE II ORGANIZATION AND ESTABLISHMENT OF TRUST................................................................3
Section 2.01 Establishment of Trust; Name..............................................................3
Section 2.02 Office....................................................................................3
Section 2.03 Purposes and Powers.......................................................................4
Section 2.04 Appointment of Owner Trustee..............................................................5
Section 2.05 Initial Capital Contribution; Organizational Expenses.....................................5
Section 2.06 Declaration of Trust......................................................................5
Section 2.07 Liability of Trust Depositor..............................................................5
Section 2.08 Title to Trust Property...................................................................6
Section 2.09 Situs of Trust............................................................................6
Section 2.10 Representations and Warranties of the Trust Depositor.....................................6
Section 2.11 Federal Income Tax Treatment..............................................................7
ARTICLE III EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN.................................................7
Section 3.01 Initial Ownership.........................................................................7
Section 3.02 The Equity Certificate....................................................................8
Section 3.03 Authentication and Delivery of Equity Certificate.........................................8
Section 3.04 Registration of Transfer and Exchange of the Equity Certificates..........................8
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate.............................9
Section 3.06 Persons Deemed Owners.....................................................................9
Section 3.07 Access to List of Equity Certificateholder's Name and Addresses...........................9
Section 3.08 Maintenance of Office or Agency..........................................................10
Section 3.09 Ownership by Trust Depositor of Equity Certificate.......................................10
ARTICLE IV ACTIONS BY OWNER TRUSTEE..............................................................................10
Section 4.01 Prior Notice to Equity Certificateholder with Respect to Certain Matters.................10
Section 4.02 Action by Owner with Respect to Certain Matters..........................................11
Section 4.03 Action by Owner with Respect to Bankruptcy...............................................11
Section 4.04 Restrictions on Owner's Power............................................................11
ARTICLE V APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES............................................11
Section 5.01 Collection Account.......................................................................11
Section 5.02 Distributions from Collection Account....................................................11
Section 5.03 Reports..................................................................................11
Section 5.04 Taxes....................................................................................12
Section 5.05 Method of Payment........................................................................12
Section 5.06 No Segregation of Moneys; No Interest....................................................12
Section 5.07 Accounting and Reports to the Equity Certificateholder, the Internal Revenue
Service and Others.......................................................................12
Section 5.08 Signature on Returns; Tax Matters Partner................................................13
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.................................................................13
Section 6.01 General Authority........................................................................13
Section 6.02 General Duties...........................................................................13
Section 6.03 Action Upon Instruction..................................................................13
Section 6.04 No Duties Except as Specified in this Agreement or in Instructions.......................15
Section 6.05 No Action Except Under Specified Documents or Instructions...............................15
Section 6.06 Restrictions.............................................................................15
Section 6.07 Administration Agreement.................................................................15
ARTICLE VII CONCERNING THE OWNER TRUSTEE.........................................................................16
Section 7.01 Acceptance of Trusts and Duties..........................................................16
Section 7.02 Furnishing of Documents..................................................................17
Section 7.03 Representations and Warranties...........................................................17
Section 7.04 Reliance; Advice of Counsel..............................................................18
Section 7.05 Not Acting in Individual Capacity........................................................18
Section 7.06 Owner Trustee not Liable for Notes, Equity Certificate or Contracts......................18
Section 7.07 Owner Trustee May Own Notes..............................................................19
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.......................................................................20
Section 8.01 Owner Trustee's Fees and Expenses........................................................20
Section 8.02 Indemnification..........................................................................20
Section 8.03 Non-Recourse Obligations.................................................................20
ARTICLE IX TERMINATION OF TRUST..................................................................................21
Section 9.01 Termination of Trust.....................................................................21
Section 9.02 Dissolution upon Bankruptcy of Trust Depositor...........................................22
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.................................................22
Section 10.01 Eligibility Requirements for Owner Trustee...............................................22
Section 10.02 Resignation or Removal of Owner Trustee..................................................22
Section 10.03 Successor Owner Trustee..................................................................23
Section 10.04 Merger or Consolidation of Owner Trustee.................................................23
Section 10.05 Appointment of Co-Trustee or Separate Trustee............................................24
ARTICLE XI MISCELLANEOUS.........................................................................................25
Section 11.01 Supplements and Amendments...............................................................25
Section 11.02 Limitations on Rights of Others..........................................................26
Section 11.03 Notices..................................................................................26
Section 11.04 Severability o Provisions................................................................27
Section 11.05 Counterparts.............................................................................27
Section 11.06 Successors and Assigns...................................................................27
Section 11.07 No Petition..............................................................................28
Section 11.08 No Recourse..............................................................................28
Section 11.09 Headings.................................................................................28
Section 11.10 Governing Law............................................................................28
Section 11.11 Certain Servicer Payment Obligations.....................................................28
Section 11.12 Jurisdiction.............................................................................28
Section 11.13 Waiver of Jury Trial.....................................................................28
This TRUST AGREEMENT dated as of [ ], is made by and between GS
Mortgage Securities Corp. , a Delaware corporation, as Trust Depositor (the
"Trust Depositor"), and [ ], as owner trustee (the "Owner Trustee").
In consideration of the mutual agreements herein contained, and
for other good and valuable consideration, the receipt and adequacy of
which are acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms Generally. Capitalized terms used that
are not otherwise specifically defined herein shall have the same meaning
given to such terms when used in the Pooling Agreement (as defined in
Section 1.02 below).
Section 1.02 Specific Defined Terms. Whenever used in this
Agreement, the following words and phrases, unless otherwise specified or
the context otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration Agreement,
dated as of the date hereof, among the Trust, the Trust Depositor, the
Indenture Trustee and [ ], as Administrator.
"Administrator" has the meaning given such term in the
Administration Agreement.
"Agreement" means this Trust Agreement, as the same may be
amended, supplemented or restated from time to time.
"Benefit Plan" means: (i) an employee benefit plan (as such term
is defined in Section 3(3) of 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.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Codess.3801 et seq., as the same may be amended from
time to time.
"Certificate Balance" means $[ ].
"Certificate of Trust" means the Certificate of Trust filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute,
substantially in the form of Exhibit A hereto.
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar (or any successor thereto) appointed
pursuant to Section 3.04.
"Closing Date" means [ ].
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Certificate" means the trust certificate evidencing the
beneficial equity interest of the Owner in the Trust and Trust Assets,
substantially in the form of Exhibit C hereto.
"Equity Certificateholder" means the Person in whose name the
Equity Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Event of Termination" has the meaning given such term in Section
8.01.
"Expenses" shall have the meaning assigned to such term in Section
9.02.
"Foreign Person" means any Person other than: (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other
entity organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate the income of which is subject to U.S.
federal income taxation regardless of its source, or (iv) a trust whose
administration is subject to the primary supervision of a court within the
United States and which has one or more U.S. fiduciaries who have authority
to control all substantial decisions of the Trust.
"Holder" means a Noteholder or an Equity Certificateholder, as
applicable.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 9.02.
"Indenture" means the Indenture dated as of the date of between
the Trust and [ ], as Indenture Trustee.
"Note Depository Agreement" means the Agreement dated as of the
Closing Date among the Trust, the Indenture Trustee, the Administrator and
DTC, as the Clearing Agency, relating to the Notes, as the same may be
amended and supplemented from time to time.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class A-5 Notes, the Class B Notes, the
Class C Notes, and the Class D Notes in each case issued pursuant to the
Indenture.
"Noteholders" means each Person in whose name a Notes is
registered in the Note Register maintained by the Owner Trustee.
"Owner" means the Equity Certificateholder.
"Owner Trustee" means [ ], not in its individual capacity but
solely as owner trustee under this Agreement, and any successor Owner
Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the
Owner Trustee at which its corporate trust business shall be administered,
which initially shall be [ ], [ ], [ ], or such other office at such other
address in the State of [ ] as the Owner Trustee may designate from time to
time by notice to the Equity Certificateholder, the Servicer, the Indenture
Trustee and the Trust Depositor.
"Person" means any individual, corporation, estate, partnership,
joint venture, association, limited liability company, joint stock company,
trust (including any beneficiary thereof) unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling Agreement" means the Pooling and Servicing Agreement,
dated as of [ ], among the Trust, the Trust Depositor, [ ], and [ ], in its
individual capacity and as Servicer thereunder, as the same may be amended,
supplemented or restated from time to time.
"Required Holders" has the meaning given such term in the Pooling
Agreement.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" means the trust established by this Agreement, the estate
of which consists of the Trust Assets.
"Trust Assets" means the property and proceeds of every
description conveyed from time to time pursuant to Section 2.01 and 2.04 of
the Pooling Agreement, together with the Trust Accounts (including all
investments therein and proceeds and income therefrom), but not including
any of such property which has been released and reconveyed from the Trust
in accordance with and pursuant to the Pooling Agreement.
"Trust Depositor" means [ ] in its capacity as Trust Depositor
hereunder, and its successors.
"Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article
Two of the Pooling and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time
to time, including any rights of the Owner Trustee and the Trust pursuant
to the Pooling and Servicing Agreement and the Administration Agreement.
Section 1.03 Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words
importing one gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words
in a visible form; references to agreements and other contractual
instruments include all amendments, modifications and supplements thereto
or any changes therein entered into in accordance with their respective
terms and not prohibited by this Agreement; references to Persons include
their permitted successors and assigns; and the term "including" means
"including without limitation".
Section 1.04 Section References. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
Section 1.05 Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01 Establishment of Trust; Name. There is hereby formed
and established pursuant to the Business Trust Statute a Delaware business
trust which shall be known as "[ ] Equipment Trust Securities [ ]", in
which name the Owner Trustee may conduct the activities 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 2.02 Office. The office of the Trust shall be in care of
the Owner Trustee at the Owner Trustee Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Noteholders and the Trust Depositor.
Section 2.03 Purposes and Powers.
(a) The sole purpose of the Trust is to manage the Trust Assets,
and collect and disburse the periodic income therefrom for the use and
benefit of the Equity Certificateholder, and in furtherance of such purpose
to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the
Equity Certificate pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificate, to purchase the Contracts and other Trust Assets,
organizational, start-up and transactional expenses of the Trust
(to the extent not paid by the Trust Depositor or the Servicer or
Administrator); and to pay the balance to the Owner from time to
time pursuant to the Pooling Agreement;
(iii) to acquire, hold, manage, distribute, dispose of,
release or convey, to or at the direction of the Owner pursuant to
the Pooling Agreement, any portion of the Trust Assets in the
manner described in and pursuant to the Pooling Agreement;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection
with conservation of the Trust Assets and the making of
distributions to the Owner and the Noteholders.
(b) The Owner Trustee is hereby authorized to engage in the
foregoing activities on behalf of the Trust. The Trust shall not engage in
any activities other than in connection with the foregoing. Nothing
contained herein shall be deemed to authorize the Owner Trustee to engage
in any business operations or any activities other than those set forth in
this Section 2.03. Specifically, the Owner Trustee shall have no authority
to engage in any business operations, or acquire any assets other than
those specifically included in the Trust Assets, or otherwise vary the
assets held by the Trust. Similarly, the Owner Trustee shall have no
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of this Trust as set forth in
this Section 2.03.
Section 2.04 Appointment of Owner Trustee. The Trust Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of
the date hereof, to have all the rights, powers and duties set forth herein
and in the Business Trust Statute, and the Owner Trustee hereby accepts
such appointment.
Section 2.05 Initial Capital Contribution; Organizational
Expenses. The Trust Depositor hereby sells, assigns, transfers, conveys and
sets over to the Owner Trustee on behalf of the Trust, as of the date
hereof, the sum of $1, which shall constitute the initial contribution of
the Trust Depositor in respect of the establishment and formation of the
Trust. The Owner Trustee hereby acknowledges receipt in trust from the
Trust Depositor, as of the date hereof, of the foregoing contribution. The
Trust Depositor shall pay or provide for the payment of further
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse or provide for the
reimbursement of the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section 2.06 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Assets in trust upon and subject to
the conditions set forth herein for the sole purpose of conserving the
Trust Assets and collecting and disbursing the periodic income therefrom
for the use and benefit of the Owner, subject to the obligations of the
Trust under the Transaction Documents. It is the intention of the parties
hereto that the Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Business
Trust Statute for the sole purpose and to the extent necessary to
accomplish the purposes of this Trust as set forth in Section 2.03.
Section 2.07 Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the
Trust Depositor as Owner shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the Owner
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general
partner; provided, however, that the Owner shall not be liable for any
losses incurred by the Equity Certificateholder in the capacity of an
investor in the Trust Certificate or a Noteholder in the capacity of an
investor in the Notes; and provided further, that the Owner shall not be so
liable to any injured party or other creditor if such party has agreed that
its recourse against the Trust for any obligation or liability of the Trust
to such party shall be limited to the assets of the Trust. In addition, any
third party creditors of the Trust (other than in connection with the
obligations described in the immediately preceding sentence for which the
Owner shall not be liable) shall be deemed third party beneficiaries of
this paragraph.
(b) No Equity Certificateholder, other than to the extent set
forth in Section 2.07(a), shall have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by
the parties to this Agreement pursuant to any provisions of this Agreement
or any other Transaction Document.
Section 2.08 Title to Trust Property.
(a) Legal title to the Trust Assets shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Assets to be vested in
an owner trustee or owner 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.
(b) The Holders shall not have legal title to any part of the
Trust Assets. The Holders shall be entitled to receive distributions from
the Trust.
Section 2.09 Situs of Trust. The Trust will be located and
administered in the State of [ ] or 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, [ ] or any agent of
the Trust from having employees within or without the State of [ ].
Payments will be received by the Trust only in [ ] or [ ] and payments will
be made by the Trust only from [ ] or [ ]. The only office of the Trust
will be at the Owner Trustee Corporate Trust Office.
Section 2.10 Representations and Warranties of the Trust
Depositor.
The Trust Depositor hereby represents and warrants to the Owner
Trustee, that:
(i) The Trust Depositor is duly organized and validly
existing as a corporation organized and existing, and in good
standing, under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business and
had at all relevant times, and has, power, authority and legal
right to acquire and own the assets conveyed and to be conveyed by
it to the Trust from time to time.
(ii) The Trust Depositor is duly qualified to do business as
a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business
requires such qualifications.
(iii) The Trust Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; the
Trust Depositor has full power and authority to sell and assign
the property to be sold and assigned from time to time to and
deposited with the Owner Trustee on behalf of the Trust as part of
the Trust Assets and has or will have duly authorized such sale
and assignment and deposit with the Owner Trustee on behalf of the
Trust by all necessary entity action; the execution, delivery and
performance of this Agreement have been duly authorized by the
Trust Depositor by all necessary entity action; and this Agreement
constitutes the legal, valid and binding obligation of the Trust
Depositor, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the certificate of formation or limited
liability company agreement of the Trust Depositor, or any
indenture, agreement or other instrument to which the Trust
Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of the properties of
the Trust Depositor pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the
Transaction Documents); nor violate any law or any order, rule or
regulation applicable to the Trust Depositor of any court or of
any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Trust Depositor or its properties.
(v) All approvals, authorizations, consents, orders or other
actions of any Person or any governmental entity required in
connection with the execution and delivery of this Agreement and
the fulfillment of the terms hereof have been obtained.
(vi) There are no proceedings or investigations pending, or
to the Trust Depositor's knowledge threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trust Depositor or
its properties: (A) asserting the invalidity of this Agreement,
any of the Transaction Documents or, (B) seeking to prevent the
issuance of the Equity Certificate or the consummation of any of
the transactions contemplated by this Agreement or the other
Transaction Documents, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Trust Depositor of its obligations under, or the validity or
enforceability of, this Agreement, the Equity Certificate or any
other Transaction Document, or (D) involving the Trust Depositor
and which might adversely affect the federal income tax or other
federal, state or local tax attributes of the Equity Certificate.
Section 2.11 Federal Income Tax Treatment. It is the intention of
the Trust Depositor that the Trust be disregarded as a separate entity for
federal income tax purposes pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The
Equity Certificate constitutes the sole equity interest in the Trust and
must at all times be held by either the Trust Depositor or its transferee
as sole Owner. The Trust Depositor agrees not to take any action
inconsistent with such intended federal income tax treatment. Because for
federal income tax purposes the Trust will be disregarded as a separate
entity, Trust items of income, gain, loss and deduction for any month as
determined for federal income tax purposes shall be allocated entirely to
the Owner; provided, that this sentence shall not limit or otherwise affect
the provisions of the Transaction Documents pertaining to distributions of
Trust Assets or proceeds thereof to Persons other than the Trust Depositor.
ARTICLE III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01 Initial Ownership.
(a) Upon the formation of the Trust by the contribution by the
Trust Depositor pursuant to Section 2.05 and until the issuance of the
Equity Certificate, the Trust Depositor shall be the sole beneficiary of
the Trust. The Equity Certificate must at all times be held by either the
Trust Depositor or its transferee (to the extent permitted under Section
3.01(b) and Section 2.12(a)) as sole owner.
(b) No transfer of the Equity Certificate shall be made unless
such transfer is made in a transaction which does not require registration
or qualification under the Securities Act or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the
Certificate Registrar shall effect the registration of any transfer of the
Equity Certificate unless, prior to such transfer the Owner Trustee shall
have received
(i) a Tax Opinion, and
(ii) a certificate from the proposed transferee certifying
that: (A) following such transfer, there would be no more than one
holder of the Equity Certificate and the holder of the Equity
Certificate would not be a Foreign Person, a partnership,
Subchapter S corporation or grantor trust and (B) such transfer
does not violate any state securities or Blue Sky laws or the
Securities Act.
Section 3.02 The Equity Certificate.
(a) On the Closing Date, the Equity Certificate shall be issued to
the Trust Depositor, substantially in the form of Exhibit B hereto. The
Equity Certificate shall be issued with an original Certificate balance
equal to the Certificate Balance. The Equity Certificate shall be executed
by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and, upon
authentication pursuant to Section 3.03, shall be deemed to have been
validly issued when so executed and authenticated. The Equity Certificate
bearing the manual or facsimile signature of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificate or
did not hold such offices at the date of the authentication and delivery of
the Equity Certificate. The Equity Certificate shall be dated the date of
its authentication.
Section 3.03 Authentication and Delivery of Equity Certificate.
The Equity Certificate shall not entitle its holder to any benefit under
this Agreement, or be valid for any purpose, unless there shall appear on
such Equity Certificate a certificate of authentication substantially in
the form set forth in Exhibit B executed by the Owner Trustee or its
authenticating agent, by manual or facsimile signature; such authentication
shall constitute conclusive evidence that the Equity Certificate shall have
been duly authenticated and delivered hereunder. The Equity Bank is hereby
initially appointed Authentication Agent.
Section 3.04 Registration of Transfer and Exchange of the Equity
Certificates.
(a) The Certificate Registrar shall maintain or cause to be
maintained, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, it shall provide for the registration of the Equity
Certificate and of transfers and exchanges of the Equity Certificate as
provided in this Agreement. [ ] is hereby initially appointed Certificate
Registrar for the purpose of registering the Equity Certificate and
transfers and exchanges of the Equity Certificate as provided in this
Agreement. In the event that the Owner Trustee notifies the Servicer that [
] is unable to act as Certificate Registrar, the Servicer shall appoint
another bank or trust company, having an office or agency located in The
City of New York, agreeing to act in accordance with the provisions of this
Agreement applicable to it, and otherwise acceptable to the Owner Trustee
and the Administrative Agent, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of the Equity
Certificate otherwise permitted to be transferred in accordance herewith at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall (subject to Section 3.01(b) execute, authenticate and deliver (or
shall cause its authenticating agent to authenticate and deliver), in the
name of the designated transferee, one new Trust Certificate having the
same aggregate principal amount.
(c) Every Equity Certificate presented or surrendered for
registration of transfer 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 thereof or his attorney duly
authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of the Equity Certificate, but the Owner Trustee or
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 of the Equity Certificate.
(e) All Equity Certificates 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.
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity
Certificate. If: (a) 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 Equity
Certificate, and (b) there is delivered to the Certificate Registrar and
the Owner Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice that such Equity
Certificate has been acquired by a bona fide purchaser, the Owner Trustee
on behalf of the Trust shall execute and the Owner Trustee or the
Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Equity Certificate, a
new Equity Certificate of like tenor. In connection with the issuance of
any new Equity Certificate under this Section, the Owner Trustee or
Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the reasonable fees and expenses
of the Owner Trustee and the Certificate Registrar) connected therewith.
Any duplicate Equity Certificate issued pursuant to this Section shall
constitute conclusive evidence of beneficial ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Equity
Certificate shall be found at any time.
Section 3.06 Persons Deemed Owners. Prior to due presentation of a
Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the
Person in whose name the Equity Certificate is registered as the owner of
the Equity Certificate for the purpose of receiving distributions pursuant
to Section 5.02 and for all other purposes whatsoever, and none of the
Owner Trustee, the Certificate Registrar or any of their respective agents
shall be affected by any notice of the contrary.
Section 3.07 Access to List of Equity Certificateholder's Name and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Indenture Trustee and the Trust Depositor within 15 days
after receipt by the Owner Trustee of a written request therefor from the
Servicer, the Indenture Trustee or the Trust Depositor, name and address of
the Equity Certificateholder as of the most recent Record Date in such form
as the Servicer, the Indenture Trustee or the Trust Depositor may
reasonably require. The Equity Certificateholder, by receiving and holding
the Equity Certificate, agrees that neither the Servicer, the Trust
Depositor nor the Owner Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the
name and address of the Equity Certificateholder hereunder, regardless of
the source from which such information was derived.
Section 3.08 Maintenance of Office or Agency. The Owner Trustee
shall maintain in The City of New York an office or offices or agency or
agencies where Equity Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner
Trustee in respect of the Equity Certificate and any Transaction Documents
may be served. The Owner Trustee initially designates the corporate trust
office of [ ], Attention: [ ], as its office for such purposes. The Owner
Trustee shall give prompt written notice to the Trust Depositor, the
Servicer, the Administrative Agent and the Equity Certificateholder of any
change in the location of the Certificate Register or any such office or
agency.
Section 3.09 Ownership by Trust Depositor of Equity Certificate.
Trust Depositor shall on the Closing Date purchase from the Trust the
Equity Certificate representing the Certificate Balance.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Equity Certificateholder with Respect
to Certain Matters. Subject to the provisions and limitations of Section
4.04, with respect to the following matters, the Owner Trustee shall not
take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Equity Certificateholder in writing
of the proposed action, the Indenture Trustee shall have consented to such
action in the event any Notes are outstanding and the Equity
Certificateholder shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Equity
Certificateholder has withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of Trust
Assets) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of Trust Assets);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Owner;
(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 or add any provision that would not materially and
adversely effect the interest of the Owner; 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, Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or the Agreement, as
applicable.
Section 4.02 Action by Owner with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner
Trustee shall not have the power, except upon the direction of the Owner,
to: (a) remove the Administrator pursuant to Section 8 of the
Administration Agreement, (b) appoint a successor Administrator pursuant to
Section 8 of the Administration Agreement, (c) remove the Servicer pursuant
to Article VIII of the Pooling Agreement, (d) except as expressly provided
in the relevant Transaction Documents, release or convey from the Trust any
Trust Assets, (e) initiate any claim, suit or proceeding by the Trust or
compromise any claim, suit or proceeding brought by or against the Trust,
(f) authorize the merger or consolidation of the Trust with or into any
other business trust or entity (other than in accordance with applicable
restrictions or conditions thereon contained in a Transaction Document) or
(g) amend the Certificate of Trust. The Owner Trustee shall take the
actions referred to in the preceding sentence upon (and only upon) written
instructions signed by the Owner.
Section 4.03 Action by Owner with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner
and the delivery to the Owner Trustee by such Owner of a certificate
certifying that such Owner reasonably believes that the Trust is no longer
Solvent.
Section 4.04 Restrictions on Owner's Power. Neither the
Administrator nor the Owner shall direct the Owner Trustee to take or to
refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Owner Trustee under this Agreement or
any of the other Transaction Documents, or would be contrary to the purpose
of this Trust as set forth in Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
ARTICLE V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 Collection Account. The Owner Trustee shall establish
(or direct the Servicer to establish on its behalf) the Collection Account
with a Qualified Institution pursuant to and in accordance with Article VII
of the Pooling Agreement.
Section 5.02 Distributions from Collection Account. On each
Payment Date the Owner Trustee (based solely on the information contained
in the Servicer's monthly payment instructions referred to in Sections
7.05(a) or (b), as applicable, of the Pooling Agreement) shall make the
distributions and payments from the Available Amounts on deposit in the
Collection Account to the parties, for the purposes and in the order of
priorities specified in such Sections 7.05(a) or (b) of the Pooling
Agreement, as applicable.
Section 5.03 Reports. On each Payment Date, the Owner Trustee
shall send or cause to be sent to the Equity Certificateholder, the
Administrative Agent and each Managing Agent, a statement (to be prepared
by the Servicer or the Administrator) based on information in the
Servicer's Monthly Report delivered on the related Determination Date
pursuant to Section 9.01 of the Pooling Agreement, setting forth for the
Accrual Period or Collection Period, as applicable, relating to such
Payment Date the following information:
(i) the amount of such distribution allocable to principal;
(ii) the amount of such distribution allocable to interest;
(iii) the principal balance of each Class of Notes and the
Equity Certificate Balance (after giving effect to distributions
made on such Payment Date);
(iv) the aggregate remaining shortfalls (after giving effect
to distributions on such Payment Date), if any, referred to in the
allocation provisions of Section 7.05 of the Pooling Agreement
with respect to allocations previously required to be made but not
made due to insufficiency of Available Amounts therefor, as well
as the change in such amounts from the preceding statement; and
(v) the amount of fees and expenses, and payments in respect
of Hedging Agreements and in respect of the [ ] Hedged Amount (if
applicable), paid from the Trust Assets with respect to such
Collection Period.]
Section 5.04 Taxes. In the event that any withholding tax is
imposed on the Trust's payment (or allocation of income) to the Equity
Certificateholder, such tax shall reduce the amount otherwise distributable
to the Equity Certificateholder in accordance with this Section. The Owner
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Equity Certificateholder 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 the Equity Certificateholder
shall be treated as cash distributed to such Equity 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 the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this Section. In the event that
the Equity Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the
Equity Certificateholder in making such claim so long as the Equity
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
Section 5.05 Method of Payment. Subject to Section 10.01(c),
distributions required to be made to the Equity Certificateholder on any
Payment Date shall be made to the Equity Certificateholder of record on the
preceding Record Date by wire transfer, in immediately available funds, to
the account of the Equity Certificateholder at a bank or other entity
having appropriate facilities therefor, which the Equity Certificateholder
shall have designated to the Certificate Registrar, with appropriate
written wire transfer instructions, at least three Business Days prior to
such Payment Date. In the absence of such designation, such distributions
shall be made by check mailed to such the Equity Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.06 No Segregation of Moneys; No Interest. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or any
applicable Transaction Document, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.07 Accounting and Reports to the Equity
Certificateholder, the Internal Revenue Service and Others. The Owner
Trustee shall: (a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis and the accrual method of accounting, (b)
deliver or cause to be delivered to the Equity Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information
as may be required (including Form 1099 or Schedule K-1) to enable the
Equity Certificateholder to prepare its federal and state income tax
returns, (c) file or cause to be filed such tax returns relating to the
Trust and make such elections as from time to time may be required or
appropriate under any applicable state or federal statute or any rule or
regulation thereunder so as to maintain the federal income tax treatment
for the Trust as set forth in Section 2.11, (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
Section 5.04 with respect to income or distributions to the Equity
Certificateholder. The Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to Contracts becoming part of the Contract Pool. If applicable, the
Owner Trustee shall not make the election provided under Section 754 or
Section 761 of the Code.
Section 5.08 Signature on Returns; Tax Matters Partner.
(a) The Owner shall sign on behalf of the Trust the tax returns of
the Trust, if any.
(b) If Subchapter K of the Code should be applicable to the Trust,
the Owner shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust from time to time
the Transaction Documents to which the Trust is to be a party and each
certificate or other document attached as an exhibit to or contemplated by
such Transaction Documents to which the Trust is to be a party and any
amendment or other agreement relating thereto (in each case, in such form
as is approved by the Trust Depositor), 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 Transaction Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator directs or recommends in writing with respect to the
Transaction Documents, subject to the terms of the Transaction Documents.
Section 6.02 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator
or such other agents as shall be appointed) all of its responsibilities
pursuant to the terms of this Agreement and the Transaction Documents to
which the Trust is a party and to administer the Trust in the interest of
the Equity Certificateholder, subject to the Transaction Documents and in
accordance with the provisions of this Agreement. Without limiting the
foregoing, the Owner Trustee shall on behalf of the Trust file and prove
any claim or claims that may exist against a Financing Originator or [ ] in
connection with any claims-paying procedure as part of a proceeding in
respect of an Insolvency Event involving such Financing Originator or [ ].
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other
Transaction 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 or the Trust hereunder or under any such Transaction
Document, and the Owner Trustee shall not be held liable for the default or
failure of the Administrator to carry out its obligations under the
Administration Agreement.
Section 6.03 Action Upon Instruction.
(a) Subject to Article IV, and in all events subject to the terms
of the applicable Transaction Documents, the Equity Certificateholder may
be written instruction direct the Owner Trustee in the management of the
Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction 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 other applicable
Transaction Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Equity Certificateholder requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee
acts in good faith in accordance with any written instruction received from
the Equity Certificateholder, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action not inconsistent with this
Agreement and the other Transaction Documents, as it shall deem to be in
the best interests of the Equity Certificateholder, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or any such provision is ambiguous as to its application, or is,
or appears to be, in conflict with any other applicable provision, or in
the event that this Agreement permits any determination by the Owner
Trustee or is silent or incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of
facts, the Owner Trustee may give notice (in such form as shall be
appropriate under the circumstances) to the Equity Certificateholder
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received from the Equity Certificateholder, the Owner Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action
not inconsistent with this Agreement or the other Transaction Documents, as
it shall deem to be in the best interests of the Equity Certificateholder,
and shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will: (i)
require the registration with, licensing by or the taking of any other
similar action in respect of, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware by or with
respect to the Owner Trustee; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware being payable by the Owner Trustee; or (iii) subject the Owner
Trustee to personal jurisdiction in any jurisdiction other than the State
of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Owner Trustee contemplated in this
Agreement. In the event that the Owner Trustee has determined that any
action set forth in clauses (i)-(iii) will result in the consequences
stated therein, the Administrator and the Owner Trustee shall appoint one
or more Persons to act as co-trustee pursuant to Section 11.05.
Section 6.04 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose
of or otherwise deal with the Trust Assets, or to otherwise take or refrain
from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement (including Section 6.02)
or any document or written instruction received by the Owner Trustee
pursuant to Article IV or Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Transaction
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any securities law filing for the Trust or to record this
Agreement or any other Transaction Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action
as may be necessary to discharge any liens on any part of the Trust Assets
that result from actions by, or claims against, the Owner Trustee, in its
individual capacity, that are not related to the ownership or the
administration of the Trust Assets.
Section 6.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Trust Assets except: (i)
in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Transaction Documents, and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Article IV or
Section 6.03.
Section 6.06 Restrictions. The Owner Trustee shall not take any
action: (i) that is inconsistent with the purposes of the Trust set forth
in Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee,
would result in the Trust's becoming taxable as a corporation for federal
or state income tax purposes. Neither the Administrator nor the Equity
Certificateholder shall direct the Owner Trustee to take actions that would
violate the provisions of this Section.
Section 6.07 Administration Agreement.
(a) The Administrator is authorized to execute on behalf of the
Trust all documents, reports, filings, instruments, Equity Certificate and
opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Transaction Documents. Upon written request, the Owner
Trustee shall execute and deliver to the Administrator a power of attorney
appointing the Administrator its agent and attorney-in-fact to execute all
such documents, reports, filings, instruments, Equity Certificate and
opinions.
(b) If the Administrator shall resign or be removed pursuant to
the terms of the Administration Agreement, the Owner Trustee may, at the
written direction of the Required Holders, appoint or consent to the
appointment of a successor Administrator pursuant to the Administration
Agreement.
(c) If the Administration Agreement is terminated, the Owner
Trustee may, and is hereby authorized and empowered to, at the written
direction of the Equity Certificateholder, appoint or consent to the
appointment of a Person to perform substantially the same duties as are
assigned to the Administrator in the Administration Agreement pursuant to
an agreement containing substantially the same provisions as are contained
in the Administration Agreement.
(d) The Owner Trustee shall promptly notify the Equity
Certificateholder of any default by or misconduct of the Administrator
under the Administration Agreement of which the Owner Trustee has received
written notice or of which a Responsible Officer of the Owner Trustee has
actual knowledge.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Assets upon the terms of the
Transaction Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any other Transaction Document
under any circumstances, except: (i) for its own willful misconduct or
negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by the Owner Trustee in
its individual capacity, (iii) for liabilities arising from the failure of
the Owner Trustee to perform obligations expressly undertaken by it in the
last sentence of Section 6.04 hereof, (iv) for any investments issued by
the Owner Trustee or any branch or affiliate thereof in its commercial
capacity, or (v) for taxes, fees or other charges on, based on or measured
by, any fees, commissions or compensation received by the Owner Trustee in
connection with any of the transactions contemplated by this Agreement or
any other Transaction Document. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee
which did not result from negligence on the part of such Responsible
Officer;
(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 the Equity Certificateholder (so long
as not contrary to the express terms of the Transaction Documents);
(c) no provision of this Agreement or any other Transaction
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 other Transaction 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 Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due execution
hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Assets, or for or in
respect of the validity or sufficiency of any Transaction Documents, other
than its signature on behalf of the Trust on, and the certificate of
authentication on, the Equity Certificate, and the Owner Trustee shall in
no event assume or incur any liability, duty, or obligation to any
Noteholder or to the Equity Certificateholder, other than as expressly
provided for herein or expressly agreed to in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee
or the Servicer under any of the Transaction 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 other Transaction
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or by
the Servicer or the Trust Depositor under any other Transaction Document;
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 other Transaction Document, at the
request, order or direction of the Equity Certificateholder, unless the
Equity Certificateholder has 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 other Transaction 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 7.02 Furnishing of Documents. The Owner Trustee shall
furnish to the Equity Certificateholder promptly upon receipt of a written
request therefor from an Equity Certificateholder, duplicates or copies of
all reports, notices, requests, demands, Equity Certificate, financial
statements and any other instruments furnished to the Owner Trustee under
the Transaction Documents.
Section 7.03 Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Trust Depositor and the Equity
Certificateholder that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to execute and deliver on behalf
of the Trust each other Transaction Document to which the Trust is a party
("Related Documents").
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and, on behalf of the Trust,
the Related Documents, and this Agreement and each Related Document will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver the same on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement
or, on behalf of the Trust, any Related Document, nor the consummation by
it of the transactions contemplated hereby nor compliance by it with any of
the terms or provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust powers of
the Owner Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or bylaws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which any of
its properties may be bound or result in the creation or imposition of any
lien, charge or encumbrance on the Trust Assets resulting from actions by
or claims against the Owner Trustee individually which are unrelated to
this Agreement or the other Transaction Documents.
Section 7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the method of 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
other Transaction Documents, the Owner Trustee: (i) may act directly or
through its agents or attorneys pursuant to agreements entered into by any
of them, and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys as shall have been selected by the
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care
and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such
persons, provided that such actions do not conflict with the express terms
of the Transaction Documents.
Section 7.05 Not Acting in Individual Capacity. Except as provided
in this Article VII, 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 other Transaction
Document shall look only to the Trust Assets for payment or satisfaction
thereof.
Section 7.06 Owner Trustee not Liable for Notes, Equity
Certificate or Contracts. The recitals contained herein and in the Equity
Certificate (other than the signature of the Owner Trustee on behalf of the
Trust on, and the certificate of authentication on, the Equity Certificate)
shall be taken as the statements of the Trust Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Transaction Document or the Equity Certificate (other
than the signature of the Owner Trustee and the certificate of
authentication on the Equity Certificates, or of any Contract or related
documents or assets. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity
and enforceability of any Contract, or the perfection and priority of any
security interest created by any Contract in any related Equipment or the
maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Assets or its ability to generate the payments
to be distributed to the Equity Certificateholder under this Agreement or
the Noteholders under the Indenture, including, without limitation, the
existence, condition and ownership of any Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Contract on any computer or other record thereof; the validity of the
assignment of any Contract to the Trust or of any intervening assignment;
the completeness of any Contract; the performance or enforcement of any
Contract; the compliance by the Trust Depositor, applicable Financing
Originator, [ ] or the Servicer with any warranty or representation made
under any Transaction Document or in any related document or the accuracy
of any such warranty or representation; or any action of the Administrator,
the Indenture Trustee or the Servicer or any subservicer taken in the name
of the Owner Trustee. Section 7.07 Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes or the Equity Certificate and may deal with the Trust
Depositor, the Administrator, the Indenture Trustee, Servicer and
Affiliates thereof in banking transactions with the same rights as it would
have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon between the Owner Trustee and the Servicer and
which shall be paid consistent with Section 5.19 of the Pooling Agreement.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the
Trust Depositor or Servicer for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and
its duties hereunder; provided, however, that the Owner Trustee shall only
be entitled to reimbursement for expenses hereunder to the extent such
expenses: (i) are fees of outside counsel engaged by the Owner Trustee in
respect of the performance of its obligations hereunder, or (ii) relate to
the performance of its obligations pursuant to Section 5.02.
Section 8.02 Indemnification. The Trust Depositor shall be liable
as primary obligor for, and shall indemnify the Owner Trustee and its
successors, assigns and servants (collectively, the "Indemnified Parties")
from and against, any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at
any time be imposed on, incurred by or asserted against the Owner Trustee
or any Indemnified Party in any way relating to or arising out of this
Agreement, any other Transaction Document, the Trust Assets, the
administration of the Trust Assets or the action or inaction of the Owner
Trustee hereunder; provided, however, the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.01; provided, further, that the liability of
the Trust Depositor under this Section shall be limited to the assets of
the Trust Depositor and any indemnity payments to be made pursuant to this
Section shall not be made from the Trust Assets and such indemnity
payments, if unpaid, do not constitute a general recourse claim against the
Trust. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's
choice of legal counsel shall be subject to the approval of the Trust
Depositor, which approval shall not be unreasonably withheld. The
indemnities contained in this Section shall be in addition to the
indemnities provided by the Servicer pursuant to the Pooling Agreement and
the Administrator pursuant to the Administration Agreement.
Section 8.03 Non-Recourse Obligations. Notwithstanding anything in
this Agreement or any other Transaction Document, the Owner Trustee agrees
in its individual capacity and in its capacity as Owner Trustee for the
Trust that all obligations of the Trust to the Owner Trustee individually
or as Owner Trustee for the Trust shall be recourse to the Trust Assets
only and specifically shall not be recourse to the assets of the Equity
Certificateholder.
ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust.
(a) The respective obligations and responsibilities of the Trust
Depositor and the Owner Trustee created by this Agreement and the Trust
created by this Agreement shall terminate upon the earliest of: (i) the
maturity or other liquidation of the last Contract and related Transferred
Assets, and the subsequent distribution of amounts in respect of such
Transferred Assets as provided in the Transaction Documents, or (ii) the
payment to the Noteholders and any other party entitled thereto of the
entire outstanding principal balance of the Notes, together with accrued
interest thereon to the date of repayment, and all other amounts required
to be paid to such parties or to which such parties are entitled pursuant
to this Agreement, the Pooling Agreement and the other Transaction
Documents, or (iii) at the time provided in Section 9.02 below; provided,
however, that in no event shall the trust created by this Agreement
continue beyond the expiration of 21 years from the death of the last
survivor of the descendants living on the date of this Agreement of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, the late Senator from the State of New York; and provided,
further, that the rights to indemnification under Section 8.02 shall
survive the termination of the Trust. The Servicer shall promptly notify
the Owner Trustee and the Administrative Agent of any prospective
termination pursuant to this Section 9.01. Except as provided in Section
9.02, the bankruptcy, liquidation, dissolution, termination, resignation,
expulsion, withdrawal, death or incapacity of the Equity Certificateholder,
shall not: (x) operate to terminate this Agreement or the Trust, nor (y)
entitle such Equity Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Assets,
nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust
Depositor nor the Equity Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Promptly upon receipt of notice of final distribution on the
Equity Certificate from the Servicer given pursuant to Section 10.01 of the
Pooling Agreement, the Owner Trustee shall mail written notice to the
Equity Certificateholder specifying: (i) the Payment Date upon which final
payment of the Equity Certificate shall be made upon presentation and
surrender of Equity Certificate at the office of the Owner Trustee as
therein specified, (ii) the amount of any such final payment, and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Equity Certificate at the office of the Owner Trustee 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 Equity Certificateholder. Upon presentation and surrender of
the Equity Certificate, the Owner Trustee shall cause to be distributed to
Equity Certificateholder amounts distributable on such Payment Date
pursuant to Section 5.02.
(d) In the event that the Equity Certificateholder shall not
surrender the Equity Certificate for cancellation within six months after
the date specified in the above-mentioned written notice, the Owner Trustee
shall give a second written notice to the Equity Certificateholder to
surrender the Equity Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice the Equity Certificate 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 Equity Certificateholder
concerning surrender of the Equity Certificate, and the cost thereof shall
be paid out of the funds and other assets that remain subject to this
Agreement. Any funds which are payable to the Equity Certificateholder
remaining in the Trust after exhaustion of such remedies shall be
distributed by the Owner Trustee to the Trust Depositor.
(e) 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 9.02 Dissolution upon Bankruptcy of Trust Depositor. In
the event that an Insolvency Event shall occur with respect to the Trust
Depositor, then this Agreement shall be terminated 90 days after the date
of such event, in accordance with Section 9.01, unless within such 90 day
period, the Owner Trustee shall have received written instructions from the
Required Holders not to dissolve or terminate the Trust. Promptly after the
occurrence of an Insolvency Event with respect to the Trust Depositor: (i)
the Trust Depositor shall give the Indenture Trustee and Owner Trustee
written notice thereof, and the Indenture Trustee shall give prompt written
notice to the Noteholders thereof. Upon a termination pursuant to this
Section, the Owner Trustee shall direct the Indenture Trustee promptly sell
the Trust Assets in a commercially reasonable manner and on commercially
reasonable terms. The proceeds of such a sale shall be treated, allocated
and distributed as Collections in accordance with the Pooling Agreement.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation: (i) satisfying the
provisions of Section 3807(a) of the Business Trust Statute; (ii)
authorized to exercise corporate trust powers; (iii) having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authorities; (iv) having (or having a
parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇ or BBB by Standard &
Poor's; (v) which is not an Affiliate of the Issuer, the Trust Depositor,
or any Financing Originator, and (vi) does not offer or provide credit or
credit enhancement to the Issuer or the Trust Depositor. If such
corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section
10.02.
Section 10.02 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Trust Depositor and the
Servicer at least 30 days before the date specified in such instrument.
Upon receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee meeting the qualifications set forth in
Section 10.01 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy
to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Administrator or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt
or insolvent, or a receiver of the Owner Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Trust Depositor shall promptly appoint a successor Owner Trustee meeting
the qualification requirements of Section 10.01 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
together with payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until all fees and expenses, including any
indemnity payments, due to the outgoing Owner Trustee have been paid and
until acceptance of appointment by the successor Owner Trustee pursuant to
Section 10.03.
Section 10.03 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver
to the Trust Depositor and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties, and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the Trust
Depositor and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice thereof to
the Equity Certificateholder, the Indenture Trustee, the Noteholders and
each Rating Agency. If the Administrator shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Trust Depositor.
Any successor Owner Trustee appointed pursuant to this Section
10.03 shall file an amendment to the Certificate of Trust with the Delaware
Secretary of State identifying the name and principal place of business of
such successor in the State of Delaware.
Section 10.04 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate
trust business of the Owner Trustee, shall be the successor of the Owner
Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 11.01, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto. Notwithstanding
anything contained herein to the contrary, the successor Owner Trustee
under this Section 10.04 shall file an amendment to the Certificate of
Trust with the Delaware Secretary of State identifying the name and
principal place of business of such successor in the State of Delaware.
Section 10.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Assets may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Assets, and to vest in such
Person, in such capacity, such title to the Trust Assets, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.01.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(a) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties, and obligations (including the holding of title to
the Trust Assets or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) the Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments.
(a) This Agreement may be amended by the Trust Depositor and the
Owner Trustee, without the consent of any of the Noteholders or the Equity
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that
any such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interest of any Noteholder or the Equity
Certificateholder.
(b) This Agreement may also be amended from time to time by the
Trust Depositor and the Owner Trustee, with the consent of the Required
Holders and the Equity Certificateholder, 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 Equity Certificateholder; provided, however, that no
such amendment shall increase or reduce in any manner the amount of, or
accelerate or delay the timing of: (i) collections of payments on Contracts
or distributions that shall be required to be made for the benefit of the
Noteholders or the Equity Certificateholder, or (ii) eliminate the Equity
Certificateholder consent or reduce the aforesaid percentage of the
Outstanding Amount of the Notes required to consent to any such amendment,
without the consent of the Holders of all outstanding Notes and the Equity
Certificates.
(c) Prior to the execution of any such amendment or consent, the
Trust Depositor shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture
Trustee and the Administrator.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of
such amendment or consent to the Equity Certificateholder. It shall not be
necessary for the consent of the Equity Certificateholder, Noteholders or
the Indenture Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of the Equity Certificateholder
provided for in this Agreement or in any other Transaction Document) and of
evidencing the authorization of the execution thereof by the Equity
Certificateholder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(e) 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.
(f) Prior to the execution of any amendment or supplement to this
Agreement or the Certificate of Trust, the Owner Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement and the
other Transaction Documents, and that all conditions precedent to the
execution and delivery of such amendment as set forth in the applicable
Transaction Documents have been satisfied. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Owner
Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section 11.02 Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Trust Depositor, the Owner, the Administrator and, to
the extent expressly provided herein, the Indenture Trustee, the
Noteholders and the Equity Certificateholder, and nothing in this Agreement
(other than Section 2.07), whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Trust Assets or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.03 Notices. All notices, demands, Equity Certificate,
requests and communications hereunder ("notices") shall be in writing and
shall be effective: (a) upon receipt when sent through the U.S. mails,
registered or certified mail, return receipt requested, postage prepaid,
with such receipt to be effective the date of delivery indicated on the
return receipt, or (b) one Business Day after delivery to an overnight
courier, or (c) on the date personally delivered to an authorized officer
of the party to which sent, or (d) on the date transmitted by legible
telefax transmission with a confirmation of receipt, in all cases addressed
to the recipient as follows:
(i) If to the initial Servicer/Administrator:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
with a copy to:
[ ]
[ ]
[ ]
Attention: [ ]
Fax No.: [ ]
Telephone No.: [ ]
(ii) If to the Trust Depositor:
[ ]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
Fax No.: [ ]
Telephone No.: [ ]
(iii) If to the Owner Trustee:
[ ]
Attention: [ ]
Fax No.: [ ]
Telephone No.: [ ]
with a copy to:
[ ]
Attention: [ ]
Fax No.: [ ]
Telephone No.: [ ]
Each party hereto may, by notice given in accordance herewith to each of
the other parties hereto, designate any further or different address to
which subsequent notices shall be sent.
Section 11.04 Severability o 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 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 the Certificate or the rights of the Equity Certificateholder
thereof.
Section 11.05 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section 11.06 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each
of the Trust Depositor, and the Owner Trustee and their respective
successors and permitted assigns and the Owner and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Owner shall bind the
successors and assigns of such Owner.
Section 11.07 No Petition.
(a) The Trust Depositor will not at any time institute against (or
solicit or cooperate with or encourage any Person to institute against) the
Trust any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to
the Equity Certificate, the Notes, this Agreement or any of the other
Transaction Documents existing from time to time.
(b) The Owner Trustee, by entering into this Agreement, and the
Equity Certificateholder, by accepting the Equity Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time
institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust Depositor or the Trust, or join in any
institution against the Trust Depositor or the Trust of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Equity Certificate,
the Notes, this Agreement or any of the other Transaction Documents
existing from time to time.
Section 11.08 No Recourse. The Equity Certificateholder by
accepting the Equity Certificate acknowledges that the Equity
Certificateholder's Equity Certificate represents beneficial interests in
the Trust only and does not represent interests in or obligations of the
Trust Depositor, the Servicer, any Financing Originator, the Administrator,
the Owner Trustee, the Indenture Trustee or any of their respective
Affiliates and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, the
Equity Certificate or the other applicable Transaction Documents.
Section 11.09 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.11 Certain Servicer Payment Obligations. It is
understood that the Servicer shall be responsible for payment of the
Administrator's compensation pursuant to Section 3 of the Administration
Agreement and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder, consistent with the
provisions of Section 5.19 of the Pooling Agreement. The parties hereto
agree that any such payments, if unpaid, do not constitute a general
recourse claim against the Trust or the Trust Assets.
Section 11.12 Jurisdiction. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED
COURTS.
Section 11.13 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT
BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO
FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OF
THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS
AND RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
as of the day and year first above written.
GS Mortgage Securities Corp., as Trust Depositor
By:_____________________________________________
Name:
Title:
[ ], as Owner Trustee
By:_____________________________________________
Name:
Title:
EXHIBIT A
Form of Certificate of Trust
CERTIFICATE OF TRUST OF
[ ] EQUIPMENT TRUST SECURITIES [ ]
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 B
Form of Equity Certificate
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO NOTES TO THE EXTENT
DESCRIBED IN THE TRUST AGREEMENT AND THE POOLING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN [ ],
[ ], [ ] OR ANY AFFILIATE THEREOF, OTHER THAN THE [ ] EQUIPMENT TRUST
SECURITIES [ ].
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED
UNLESS THE CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE
BEEN COMPLIED WITH.
THIS CERTIFICATE IS TRANSFERABLE ONLY IN WHOLE AND NOT IN PART.
THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
[ ] EQUIPMENT TRUST SECURITIES [ ]
EQUITY CERTIFICATE
NO. 1 Equity Certificate
THIS CERTIFIES THAT [ ] is the registered owner of a beneficial
interest in the [ ] Equipment Trust Securities [ ] (the "Trust") formed by
GS Mortgage Securities Corp., a Delaware corporation (the "Trust
Depositor").
The Trust was created pursuant to a Trust Agreement dated as of [
] (as amended, restated, supplemented and/or otherwise modified from time
to time, the "Trust Agreement"), between [ ] as Trust Depositor (the "Trust
Depositor"), and [ ], as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. In the
event of any conflict or inconsistency between this Certificate and the
Trust Agreement (or the Pooling Agreement, as the case may be), the Trust
Agreement (or the Pooling Agreement, as the case may be) shall govern. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings which would be given to them if used in the Trust
Agreement.
This Certificate is the duly authorized Equity Certificate issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of its acceptance hereof assents and by which such Holder is bound.
The Trust has also issued Notes, in right of payment to which this Equity
Certificate is subordinate. The property of the Trust includes, among other
things, all the right, title and interest of the Trust Depositor in and to
the Transferred Assets identified in one or more related Transfer
Agreements delivered from time to time on related Transfer Dates.
The amount to be distributed to the Holder of this Certificate on
each Payment Date will be determined pursuant to the Pooling Agreement.
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 Noteholders to the extent described in the
Trust Agreement and the Pooling Agreement.
It is the intent of each Financing Originator, the Servicer, the
Administrator, the Trust Depositor, the Owner Trustee, and the Equity
Certificateholder that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust will
be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all
items of income, deduction, gain, loss or credit of the Trust will be
treated as such items of the Equity Certificateholder. The Trust Depositor
and the Equity Certificateholder, by acceptance of this Certificate, agrees
to treat, and to take no action inconsistent with such treatment of, the
Trust for federal income tax purposes.
The Equity Certificateholder, by its acceptance of this
Certificate or a beneficial interest in this Certificate, covenants and
agrees that such Equity Certificateholder will not at any time institute
against (or solicit or cooperate with or encourage any Person to institute
against) the Trust or the Trust Depositor, or join in any institution
against the Trust or the Trust Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Certificate, any Senior
Certificate, the Trust Agreement or any of the other Transaction Documents
in existence from time to time.
Distributions on this Certificate from or in respect of Trust
Assets will be made as provided in the Trust Agreement and the Pooling
Agreement, by the Owner Trustee or its agent by wire transfer or check
mailed to the Equity Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the
tendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency maintained for that purpose by the
Owner Trustee.
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 any other Transaction Document or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[REVERSE OF CERTIFICATE]
The Equity Certificate does not represent an obligation of, or an
interest in, the Trust Depositor, [ ], [ ], any Financing Originator, the
Owner Trustee, or any of their respective Affiliates (other than the Trust)
and no recourse may be had against such parties or their assets, except as
expressly set forth or contemplated herein or in the Trust Agreement or the
other Transaction 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
Trust Assets and certain other amounts, in each case as more specifically
set forth in the Trust Agreement and in the Pooling Agreement. A copy of
each of the Pooling Agreement and the Trust Agreement may be examined by
any Equity Certificateholder upon written request during normal business
hours at the principal office of the Trust Depositor and at such other
places, if any, designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Equity
Certificateholder under the Trust Agreement at any time by the Trust
Depositor and the Owner Trustee, with the consent of the parties described
therein. Any such consent shall be conclusive and binding on the Equity
Certificateholder and on all future Equity Certificateholder of this
Certificate and of any Certificate issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof, whether or not notation
of such consent is made upon this Certificate.
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 [ ], accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar executed by the Equity Certificateholder hereof or
such Equity Certificateholder's attorney duly authorized in writing, and
thereupon a new Certificate evidencing the same beneficial interest in the
Trust will be issued to the designated transferee. The initial Certificate
Registrar appointed under the Trust Agreement is the [ ].
Except as provided in the Trust Agreement, this Certificate is
issuable only as a registered Equity Certificate without coupons. No
service charge will be made for any registration of transfer of this
Certificate, 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 of their
respective agents 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 payment to
the Equity Certificateholder of all amounts required to be paid to such
Equity Certificateholder pursuant to the Trust Agreement and the Pooling
Agreement and the disposition in accordance with any applicable Transaction
Document of all property held as part of the Trust Assets.
This Trust Certificate may not be acquired by a Benefit Plan. By
accepting and holding this Certificate, the Holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan and is not
acquiring this Certificate for the account of such an entity.
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: [ ]
[ ] EQUIPMENT TRUST SECURITIES [ ]
By: [ ], not in its individual capacity
but solely as Owner Trustee
By: ______________________________________
Name:
Title: Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the within-mentioned Trust
Agreement.
By: [ ], not in its individual capacity
but solely as Owner Trustee
By: ______________________________________
Name:
Title: Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing to transfer said Certificate on the
books of the Certificate Registrar, will full power of substitution in the
premises.
Dated:_________________________
Signature Guaranteed:
---------------------------------------------------
----------------------------------- -----------------------------------
NOTICE: Signature(s) must be NOTICE: The signature to this
guaranteed by an eligible guarantor assignment must correspond with the
institution. name of the registered owner as it
appears on the face of the within
Certificate in every particular,
without alteration or enlargement of
any change whatever.
