Exhibit 4.1.1
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INDENTURE
between
GS AUTO LOAN TRUST 2003-1,
as Issuer
and
JPMORGAN CHASE BANK,
as Indenture Trustee
Dated as of April 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions..............................................................2
Section 1.02 Incorporation by Reference of Trust Indenture Act.......................10
ARTICLE II THE NOTES
Section 2.01 Form....................................................................11
Section 2.02 Execution, Authentication and Delivery..................................11
Section 2.03 Temporary Notes.........................................................12
Section 2.04 Registration; Registration of Transfer and Exchange.....................13
Section 2.05 [Reserved]..............................................................15
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes..............................15
Section 2.07 Persons Deemed Note Owners..............................................16
Section 2.08 Payment of Principal and Interest; Defaulted Interest...................16
Section 2.09 Cancellation............................................................17
Section 2.10 Book-Entry Notes........................................................17
Section 2.11 Notices to Clearing Agency..............................................18
Section 2.12 Definitive Notes........................................................18
Section 2.13 Tax Treatment...........................................................19
ARTICLE III COVENANTS
Section 3.01 Payment of Principal and Interest.......................................19
Section 3.02 Maintenance of Office or Agency.........................................19
Section 3.03 Money for Payments To Be Held in Trust..................................19
Section 3.04 Existence...............................................................21
Section 3.05 Protection of Trust Estate..............................................21
Section 3.06 Opinions as to Trust Estate.............................................22
Section 3.07 Performance of Obligations; Servicing of Receivables....................22
Section 3.08 Negative Covenants......................................................24
Section 3.09 Annual Statement as to Compliance.......................................24
Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms.....................25
Section 3.11 Successor or Transferee.................................................26
Section 3.12 No Other Business.......................................................26
Section 3.13 No Borrowing............................................................27
Section 3.14 Servicer's Obligations..................................................27
Section 3.15 Guarantees, Loans, Advances and Other Liabilities.......................27
Section 3.16 Capital Expenditures....................................................27
Section 3.17 [Reserved]..............................................................27
Section 3.18 Restricted Payments.....................................................27
Section 3.19 Notice of Events of Default.............................................27
Section 3.20 Further Instruments and Acts............................................27
Section 3.21 Perfection Representation...............................................28
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.................................28
Section 4.02 Application of Trust Money..............................................29
Section 4.03 Repayment of Moneys Held by Paying Agent................................29
Section 4.04 Release of Collateral...................................................29
ARTICLE V REMEDIES
Section 5.01 Events of Default.......................................................30
Section 5.02 Acceleration of Maturity; Rescission and Annulment......................31
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee; Authority of the Controlling Party.............................31
Section 5.04 Remedies; Priorities....................................................34
Section 5.05 Optional Preservation of the Receivables................................36
Section 5.06 Limitation of Suits.....................................................36
Section 5.07 Unconditional Rights of Noteholders To Receive Principal and Interest...37
Section 5.08 Restoration of Rights and Remedies......................................37
Section 5.09 Rights and Remedies Cumulative..........................................37
Section 5.10 Delay or Omission Not a Waiver..........................................38
Section 5.11 Control by Controlling Class............................................38
Section 5.12 Waiver of Past Defaults.................................................38
Section 5.13 Undertaking for Costs...................................................39
Section 5.14 Waiver of Stay or Extension Laws........................................39
Section 5.15 Action on Notes.........................................................39
Section 5.16 Performance and Enforcement of Certain Obligations......................39
ARTICLE VI THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.............................................40
Section 6.02 Rights of Indenture Trustee.............................................42
Section 6.03 Individual Rights of Indenture Trustee..................................43
Section 6.04 Disclaimer of Indenture Trustee.........................................43
Section 6.05 Notice of Defaults......................................................43
Section 6.06 Reports by Indenture Trustee to Holders.................................43
Section 6.07 Compensation and Indemnity..............................................44
Section 6.08 Replacement of Indenture Trustee........................................44
Section 6.09 Successor Indenture Trustee by Merger...................................45
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.......46
Section 6.11 Eligibility; Disqualification...........................................47
Section 6.12 Preferential Collection of Claims Against Issuer........................48
Section 6.13 Waiver of Setoffs.......................................................48
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Note Registrar To Furnish Indenture Trustee and Owner Trustee Names
and Addresses of Noteholders............................................48
Section 7.02 Preservation of Information; Communications to Noteholders..............48
Section 7.03 Reports by Issuer.......................................................49
Section 7.04 Reports by Indenture Trustee............................................49
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money.....................................................50
Section 8.02 Trust Accounts..........................................................50
Section 8.03 General Provisions Regarding Accounts...................................51
Section 8.04 Release of Trust Estate.................................................51
Section 8.05 Opinion of Counsel......................................................52
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders..................52
Section 9.02 Supplemental Indentures with Consent of Noteholders.....................54
Section 9.03 Execution of Supplemental Indentures....................................55
Section 9.04 Effect of Supplemental Indenture........................................55
Section 9.05 Reference in Notes to Supplemental Indentures...........................56
Section 9.06 Conformity with Trust Indenture Act.....................................56
ARTICLE X REDEMPTION OF NOTES
Section 10.01 Redemption..............................................................56
Section 10.02 Form of Redemption Notice...............................................56
Section 10.03 Notes Payable on Redemption Date........................................57
ARTICLE XI MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc...............................57
Section 11.02 Form of Documents Delivered to Indenture Trustee........................59
Section 11.03 Acts of Noteholders.....................................................60
Section 11.04 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.........60
Section 11.05 Notices to Noteholders; Waiver..........................................61
Section 11.06 Effect of Headings and Table of Contents................................61
Section 11.07 Successors and Assigns..................................................61
Section 11.08 Separability............................................................61
Section 11.09 Benefits of Indenture...................................................61
Section 11.10 Legal Holidays..........................................................62
Section 11.11 Governing Law...........................................................62
Section 11.12 Counterparts............................................................62
Section 11.13 Recording of Indenture..................................................62
Section 11.14 Trust Obligation........................................................62
Section 11.15 No Petition.............................................................62
Section 11.16 Inspection..............................................................63
Section 11.17 Conflict with Trust Indenture Act.......................................63
Section 11.18 Limitation of Liability.................................................63
SCHEDULE A Schedule of Receivables
SCHEDULE B Perfection Representation
EXHIBIT A-1 Form of Class A-1 Note
EXHIBIT A-2 Form of Class A-2 Note
EXHIBIT A-3 Form of Class A-3 Note
EXHIBIT A-4 Form of Class A-4 Note
EXHIBIT B Form of Class B Note
EXHIBIT C Form of Class C Note
EXHIBIT D Form of Class D Note
EXHIBIT E Form of Investment Letter
THIS INDENTURE, dated as of April 1, 2003, is between GS AUTO
LOAN TRUST 2003-1, a Delaware statutory trust (the "Issuer") and JPMORGAN
CHASE BANK, as Indenture Trustee (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Issuer's 1.300%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), 1.538% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), 2.076% Asset Backed Notes, Class A-3
(the "Class A-3 Notes"), 2.716% Asset Backed Notes, Class A-4 (the "Class A-4
Notes" and, together with the Class A-1 Notes, Class A-2 Notes and Class A-3
Notes, the "Class A Notes"), 2.621% Asset Backed Notes, Class B (the "Class B
Notes"), 3.748% Asset Backed Notes, Class C (the "Class C Notes") and 5.500%
Asset Backed Notes, Class D (the "Class D Notes" and, together with the Class
A Notes, the Class B Notes and the Class C Notes, the "Notes"):
GRANTING CLAUSE
(a) The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all of the Issuer's right, title and interest in and to in, to and
under each of the Receivables, including:
(i) all interest, principal, and any other amounts
received on or with respect to each of the Receivables after the
Cut-Off Date;
(ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other
interest of the Depositor in such Financed Vehicles;
(iii) all other security interests or other property
interests created by or constituting each Receivable;
(iv) all of the Issuer's rights with respect to each
Receivable and the documentation relating to the Receivables,
including, without limitation, all rights under the VSI Policy with
respect to such Receivable and the contents of each Receivable File,
including, without limitation, all of the Depositor's enforcement and
other rights under the UCC and other Applicable Law;
(v) rebates of premiums on insurance policies and all
other items financed as part of the Receivables in effect as of the
Cut-Off Date, including but not limited to, service warranties;
(vi) all Servicing Rights with respect to, and all
proceeds of and rights to enforce, any of the foregoing, including,
without limitation, any Insurance Proceeds and Liquidation Proceeds;
(vii) all of the Issuer's rights and benefits (but not
its obligations) under the Sale and Servicing Agreement, including
the representations and warranties and the cure and repurchase
obligations of the Seller set forth therein (including the Issuer's
right to cause the Seller to repurchase Receivables from the Issuer
under the circumstances described therein);
(viii) all of the Issuer's rights and benefits under
the Assignment, Assumption and Recognition Agreement, including the
representations and warranties and the cure and repurchase
obligations of HNB under the Assignment, Assumption and Recognition
Agreement;
(ix) all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and in all
investments therein and proceeds thereof (including all Investment
Earnings thereon); and
(x) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing
and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property that at
any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture. This Indenture is a security agreement within the meaning of
the UCC.
The Indenture Trustee, on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to perform its duties
required in this Indenture and the other Basic Documents to which the
Indenture Trustee is a party in accordance with the terms of this Indenture
and the other Basic Documents to which the Indenture Trustee is a party to the
end that the interests of the Holders of the Notes may be adequately and
effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
(a) Definitions. Except as otherwise specified herein
or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture. Terms
not defined herein shall have the meanings ascribed to them in the Sale and
Servicing Agreement.
"Act" has the meaning specified in Section 11.03(a).
"Affiliate" means, when used with reference to a specified
Person, any Person that (a) directly or indirectly controls or is controlled
by or is under common control with the specified Person, (b) is an officer of,
partner in or trustee of, or serves in a similar capacity with respect to, the
specified Person or of which the specified Person is an officer, partner or
trustee, or with respect to which the specified Person serves in a similar
capacity or (c) directly or indirectly is the beneficial owner of 10% or more
of any class of equity securities of the specified Person or of which the
specified Person is directly or indirectly the owner of 10% or more of any
class of equity securities.
"Authorized Officer" means, with respect to the Issuer, any
officer of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Book-Entry Note" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Business Day" means any day other than (a) a Saturday or
Sunday or (b) a day on which banking institutions in the States of New York
and Delaware, the jurisdiction of the principal place of business of the
Servicer or the cities in which the Corporate Trust Offices of the Indenture
Trustee are located, are authorized or required by law or executive order to
be closed. Prior to December 31 of each year, the Servicer will provide the
Indenture Trustee with a list of all non-Business Days in the Servicer's
principal place of business for the following calendar year.
"Certificate of Trust" means the certificate of trust of the
Issuer substantially in the form of Exhibit A to the Trust Agreement.
"Class" means each of the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes
and the Class D Notes.
"Class A Note" means a Class A-1 Note, a Class A-2 Note, a
Class A-3 Note or a Class A-4 Note, as the context may require.
"Class A-1 Notes" means the 1.300% Asset Backed Notes, Class
A-1, substantially in the form of Exhibit A-1.
"Class A-1 Rate" means 1.300% per annum, computed on the basis
of the actual number of days in the related Interest Accrual Period and a
360-day year.
"Class A-2 Notes" means the 1.538% Asset Backed Notes, Class
A-2, substantially in the form of Exhibit A-2.
"Class A-2 Rate" means a 1.538% per annum computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-3 Notes" means the 2.076% Asset Backed Notes, Class
A-3, substantially in the form of Exhibit A-3.
"Class A-3 Rate" means 2.076% per annum, computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-4 Notes" means the 2.716% Asset Backed Notes, Class
A-4, substantially in the form of Exhibit A-4.
"Class A-4 Rate" means 2.716% per annum, computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class B Notes" means the 2.621% Asset Backed Notes, Class B,
substantially in the form of Exhibit B.
"Class B Rate" means 2.621% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Class C Notes" means the 3.748% Asset Backed Notes, Class C,
substantially in the form of Exhibit C.
"Class C Rate" means 3.748% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Class D Notes" means the 5.500% Asset Backed Notes, Class D,
substantially in the form of Exhibit D.
"Class D Rate" means 5.500% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means April 24, 2003.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause
of this Indenture.
"Controlling Class" means (i) if the Class A Notes have not
been paid in full, the Class A Notes, (ii) if the Class A Notes have been paid
in full and Class B Notes remain Outstanding, the Class B Notes, (iii) if the
Class A Notes and the Class B Notes have been paid in full and Class C Notes
remain Outstanding, the Class C Notes, and (iv) if the Class A Notes, the
Class B Notes and the Class C Notes have been paid in full and Class D Notes
remain Outstanding, the Class D Notes.
"Controlling Party" means (i) if the Notes have not been paid
in full, the Indenture Trustee acting at the direction of at least a majority
in Outstanding Amount of the Noteholders of the Controlling Class and (ii) if
the Notes have been paid in full, the Owner Trustee acting at the direction of
at least a majority of the percentage interests in the Certificateholders.
"Corporate Trust Office" means, with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business is administered, which office at
the date of execution of this Agreement is located at JPMorgan Chase Bank, 4
New York Plaza, 6th Floor, New York, New York 10004 (facsimile number (212)
623-5933); Attention: Structured Finance Administration, or at such other
address as the Indenture Trustee may designate from time to time by notice to
the Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Depositor" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Secretary, the Controller or the Treasurer of such corporation;
and with respect to any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest in and a right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of the Collateral or of
any other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered on the Note Register.
"Indenture Trustee" means ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, a banking
corporation duly organized, validly existing and in good standing under the
laws of the State of New York, not in its individual capacity, but as
Indenture Trustee under this Indenture, or any successor Indenture Trustee
under this Indenture.
"Independent" means, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Depositor, the Seller and any Affiliate of any of
the foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the Depositor, the Seller or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Depositor,
the Seller or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, made
by an Independent appraiser or other expert appointed by an Issuer Order and
reasonably satisfactory to the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate or
the Class D Rate, as the context may require.
"Issuer" means GS Auto Loan Trust 2003-1 until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee, as specified in this Indenture.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3
Note, a Class A-4 Note, a Class B Note, a Class C Note or a Class D Note, as
the context may require.
"Note Owner" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant
or as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.04.
"Officer's Certificate" means a certificate signed by the
Issuer, under the circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.01, and delivered to the Indenture
Trustee, as specified in this Indenture. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an
Officer's Certificate of the Issuer. The Indenture Trustee may rely on the
Owner Trustee's list of authorized officers delivered by the Owner Trustee to
the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) to confirm the authority of
signatories to execute documents on its behalf.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be
an employee of or counsel to the Issuer and who shall be satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee, shall comply with any applicable requirements of Section
11.01 and shall be in form and substance satisfactory to the Indenture
Trustee.
"Outstanding" means, as of any date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture
unless proof satisfactory to the Indenture Trustee or the Note
Registrar is presented that any such Notes are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of
the requisite Outstanding Amount of the Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder
or under any other Basic Document, Notes owned by the Issuer, any
other obligor on the Notes, the Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee
or the Note Registrar shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Notes that a Responsible Officer of the Indenture Trustee or the
Note Registrar, as the case may be, knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Note Registrar, as the
case may be, the pledgee's right so to act with respect to such Notes
and that the pledgee is not the Issuer, any other obligor on the
Notes, the Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, as of any date of determination and
as to any Notes, the aggregate principal amount of such Notes Outstanding as
of such date of determination and, as of any date of determination and as to
any Certificates, the aggregate percentage interest of such Certificates
Outstanding as of such date of determination.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, or
any successor Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account, the Note Interest Distribution
Account and the Principal Distribution Account, including payments of
principal of or interest on the Notes on behalf of the Issuer. Initially, the
Indenture Trustee shall be the Paying Agent.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
national banking association, unincorporated organization or government or any
agency or political subdivision thereof or any other entity.
"Plan" means any (i) employee benefit plan (as defined in
section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to Title I of ERISA, (ii) plan (as defined
in section 4975(e)(1) of the Code)) that is subject to section 4975 of the
Code, including individual retirement accounts or ▇▇▇▇▇ plans, or (iii) entity
whose underlying assets include "plan assets" (as determined under Department
of Labor Regulation ss.2510.3-101 or otherwise) by reason of investment in
such entity by a plan described in (i) or (ii), including, without limitation,
as applicable, an insurance company general account.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition,
any Note authenticated and delivered under Section 2.06 in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Qualifying SPE" has the meaning set forth in SFAS 140.
"Record Date" means, with respect to a Distribution Date or
Redemption Date, the day immediately preceding such Distribution Date or
Redemption Date, unless Definitive Notes are issued, in which case the Record
Date with respect to such Definitive Notes as to any Distribution Date shall
be the last day of the immediately preceding calendar month.
"Redemption Date" means, as the context requires, in the case
of a redemption of the Notes pursuant to Section 10.01, the Distribution Date
specified by the Servicer or the Issuer pursuant to Section 10.01.
"Redemption Price" means an amount equal to (x) the unpaid
principal amount of the Notes redeemed plus (y) accrued and unpaid interest
thereon at the applicable Interest Rate plus interest on any overdue interest
at the applicable Interest Rate (to the extent lawful) for each Note being so
redeemed to but excluding the Redemption Date, plus (z) any amounts due to the
Indenture Trustee or the Owner Trustee.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture
Trustee or the Owner Trustee, as applicable, any officer within the Corporate
Trust Office of the Indenture Trustee or the Owner Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary
or any other officer of the Indenture Trustee or the Owner Trustee customarily
performing functions with respect to corporate trust matters and having direct
responsibility for the administration of this Indenture and the other Basic
Documents and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, in each case having direct
responsibility for the administration of the Basic Documents.
"Rule 144A" has the meaning set forth in Section 2.04.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of April 1, 2003, among the Issuer, the Depositor, the
Seller, the Servicer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Schedule of Receivables" means the lists of Receivables set
forth in Schedule A (which Schedule may be in the form of microfiche).
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means ▇▇▇▇▇▇▇ Sachs Mortgage Company, in its capacity
as assignor under the Assignment, Assumption and Recognition Agreement and as
seller under the Sale and Servicing Agreement, and its successors in interest.
"Servicer" means The Huntington National Bank, in its capacity
as servicer under the Sale and Servicing Agreement, and any Successor Servicer
thereunder.
"SFAS 140" means Statement of Accounting Standards No. 140 of
the Financial Accounting Standards Board, as it may be amended from time to
time.
"Similar Law" means any foreign, federal, state or local law
with provisions substantially similar to Title I of ERISA or Section 4975 of
the Code.
"STAMP" has the meaning specified in Section 2.04.
"State" means any one of the 50 states of the United States of
America, or the District of Columbia.
"Successor Servicer" has the meaning specified in Section
3.07(f).
"Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of this Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force on the date hereof, unless otherwise
specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from
time to time.
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used herein but not otherwise defined
shall have the meanings ascribed thereto in the Sale and Servicing Agreement.
(b) Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) definitions are applicable to the singular and plural forms
of such terms and to the masculine, feminine and neuter genders of
such terms; and
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to
time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to
its permitted successors and assigns.
Section 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
Section 2.01 Form. The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes
and the Class D Notes, in each case together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit B, Exhibit C and
Exhibit D, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing the Notes, as evidenced by their
execution of the Notes (but which do not affect the rights, duties or
immunities of the Indenture Trustee). Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of such Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇
▇-▇, Exhibit B, Exhibit C, and Exhibit D are part of the terms of this
Indenture.
Section 2.02 Execution, Authentication and Delivery. The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers.
The signature of any such Authorized Officer on the Notes may be manual or by
facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Note Registrar shall upon Issuer Order authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$118,614,000, Class A-2 Notes for original issue in an aggregate principal
amount of $138,336,000, Class A-3 Notes for original issue in an aggregate
principal amount of $124,956,000, Class A-4 Notes for original issue in an
aggregate principal amount of $114,082,000, Class B Notes for original use in
a aggregate principal amount of $17,148,000, Class C Notes for original issue
in an aggregate principal amount of $9,233,000 and Class D Notes for original
issue in an aggregate original principal amount of $11,666,000. The aggregate
principal amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes, Class B Notes, Class C Notes and Class D Notes outstanding at any
time may not exceed such respective amounts except as provided in Section
2.06.
Each Note authenticated and delivered by the Note Registrar to
or upon Issuer Order on the Closing Date shall be dated as of the Closing
Date. All other Notes that are authenticated after the Closing Date for any
other purpose under this Indenture shall be dated the date of their
authentication.
The Class A Notes, Class B Notes and Class C Notes shall be
issuable as registered Notes in minimum denominations of $1,000 and in
integral multiples of $1,000 in excess thereof, except that one Class C Note
may be issued in multiples of $1. The Class D Notes shall be issuable as
registered Notes in minimum denominations of $100,000 and in integral
multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Note Registrar by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
Section 2.03 Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Note Registrar shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. The Definitive
Notes shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
Authorized Officers executing such Definitive Notes. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Issuer to be maintained as provided in Section 3.02, without charge to the
Holder.
Upon surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute, and the Note Registrar shall authenticate and
deliver in exchange therefor, a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
Section 2.04 Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee is hereby initially appointed the
"Note Registrar" for the purpose of registering Notes and transfers of Notes
as herein provided. Any Note Registrar appointed in accordance with this
Section 2.04 may at any time resign by giving at least thirty (30) days
advance written notice of resignation to the Indenture Trustee (if the
Indenture Trustee is not the Note Registrar) and the Issuer. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to conclusively rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number of
such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02,
if the requirements of Section 8-401(1) of the UCC are met, the Issuer shall
execute, and the Note Registrar shall authenticate and the Noteholder shall
obtain from the Note Registrar, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in any authorized
denominations, of a like aggregate principal amount.
All Notes issued and authenticated upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
At the option of the Holder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Note Registrar, without having to verify that the requirements of
8-401(1) have been met, shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes that the Noteholder making the exchange
is entitled to receive.
No sale, pledge or other transfer of a Class D Note shall be
made unless such sale, pledge or other transfer is (I)(A) pursuant to an
effective registration statement under the Securities Act, (B) for so long as
the Class D Notes are eligible for resale pursuant to Rule 144A under the
Securities Act to a Person the transferor reasonably believes after due
inquiry is a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act ("Rule 144A") that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
transfer is being made in reliance on Rule 144A, or (C) pursuant to another
available exemption from the registration requirements of the Securities Act
and (II) in accordance with any applicable securities laws of any State of the
United States and any other relevant jurisdiction. The Depositor and the
Indenture Trustee may require an opinion of counsel to be delivered to it in
connection with any transfer of the Class D Notes pursuant to clauses (I) (A)
or (C) above.
The Class D Notes shall bear legends stating that they have not
been registered under the Securities Act and are subject to the restrictions
on transfer described in this Section 2.04. Each transferee of a Class D Note
that is a Book-Entry Note, by acceptance of such Note, shall be deemed to have
accepted such Note subject to the restrictions on transferability set forth in
the immediately preceding paragraph and in the typewritten Note representing
such Book-Entry Note delivered to the Clearing Agency. A Class D Note in the
form of a Definitive Note may not be transferred, directly or indirectly, to
any Person, other than the Initial Purchaser, unless (A) the transferee of the
Class D Note certifies in an investment letter, substantially in the form of
Exhibit E attached hereto, to the Depositor and the Indenture Trustee that
such Person is a "qualified institutional buyer" (as defined in Rule 144A) or
(B) the transferee of the Class D Note delivers to the Depositor and the
Indenture Trustee an opinion of counsel that such transfer is permitted
pursuant to clause (I)(A) or (C) of the immediately preceding paragraph. Any
opinions of counsel required in connection with a transfer shall be by counsel
reasonably acceptable to the Depositor and the Indenture Trustee.
Each Person that acquires a Note shall be required to represent
to the Depositor and the Indenture Trustee, or in the case of a Note in
book-entry form, will be deemed to represent by its acceptance of the Note,
that (i) it is not, and is not acquiring the Note on behalf of or with "plan
assets" (as determined under Department of Labor Regulation ss.2510.3-101 or
otherwise) of a Plan, or any employee benefit plan subject to Similar Law, or
(ii) it is acquiring a Class A Note, Class B Note or Class C Note and is
entitled to exemptive relief pursuant to a Department of Labor prohibited
transaction exemption or other applicable exemption with respect to its
acquisition and continued holding of such Note. Any attempted or purported
transfer of a Note with respect to which neither of the foregoing
representations is true shall be void ab initio.
In order to preserve the exemption for resales and transfers
provided by Rule 144A under the Securities Act, the Issuer shall provide to
any Holder of a Class D Note and any prospective purchaser designated by such
Holder, upon request of such Holder or such prospective purchaser, such
information required by Rule 144A as will enable the resale of such Class D
Note to be made pursuant to Rule 144A. The Servicer, the Note Registrar and
the Indenture Trustee shall cooperate with the Issuer in providing the Issuer
such information regarding the Class D Notes, the Trust Estate and other
matters regarding the Issuer as the Issuer shall reasonably request to meet
its obligations under the preceding sentence.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Note Registrar duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Exchange Act.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.03 or 9.05 not involving any
transfer.
The preceding provisions of this Section 2.04 notwithstanding,
the Issuer shall not be required to make and the Note Registrar need not
register transfers or exchanges of Notes selected for redemption or of any
Note for a period of fifteen (15) days preceding the due date for any payment
with respect to the Note.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
transfer of Notes.
Section 2.05 [Reserved].
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. If (i)
any mutilated Note is surrendered to the Note Registrar, or the Note Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Note Registrar such security or
indemnity as may be required by it to hold the Issuer and the Note Registrar
harmless, then, in the absence of notice to the Issuer or the Note Registrar
that such Note has been acquired by a bona fide purchaser, and provided that
the requirements of Section 8-405 of the UCC are met, the Issuer shall
execute, and upon an Issuer Order the Note Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a replacement Note of the same Class; provided, however, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within fifteen (15) days shall be due and payable, or shall have
been called for redemption, instead of issuing a replacement Note, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note, a bona fide
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Note
Registrar shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any loss, damage, cost or expense incurred by the Issuer or the Note Registrar
in connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee and the Note Registrar) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.07 Persons Deemed Note Owners. Prior to due
presentment for registration of transfer of any Note, the Issuer, the
Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the
Issuer or the Indenture Trustee may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such
Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any agent of the Issuer, the Indenture Trustee the Note
Registrar, the Paying Agent or the Indenture Trustee shall be affected by
notice to the contrary.
Section 2.08 Payment of Principal and Interest; Defaulted
Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and
the Class D Notes shall accrue interest at the Class A-1 Rate, the Class A-2
Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C
Rate and the Class D Rate, respectively, as set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇
▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit B, Exhibit C and Exhibit D,
respectively, and such interest shall be payable on each Distribution Date as
specified therein, subject to Section 3.01. Any installment of interest or
principal payable on a Note that is punctually paid or duly provided for by
the Issuer on the applicable Distribution Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date by check mailed first-class postage prepaid to such Person's
address as it appears on the Note Register on such Record Date, except that,
unless Definitive Notes have been issued pursuant to Section 2.12, with
respect to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payment shall
be made by wire transfer in immediately available funds to the account
designated by such nominee at least ten (10) Business Days prior to such
Distribution Date; provided, however, that the final installment of principal
payable with respect to such Note on a Distribution Date or on the related
Final Scheduled Distribution Date (including the Redemption Price for any Note
called for redemption pursuant to Section 10.01) shall be payable as provided
in paragraph (b) below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03.
(b) The principal of each Note shall be payable in
installments on each Distribution Date as provided in Section 3.01 hereof and
the forms of the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇,
▇▇▇▇▇▇▇ ▇-▇, Exhibit B, Exhibit C and Exhibit D. Notwithstanding the
foregoing, the entire unpaid principal amount of each Class of Notes may be
declared immediately due and payable, if not previously paid, in the manner
provided in Section 5.02 on any date on which an Event of Default shall have
occurred and be continuing by the Indenture Trustee or the Indenture Trustee
acting at the written direction of the Holders of Notes representing not less
than a majority of the Outstanding Amount of the Controlling Class. All
principal payments on each Class of Notes shall be made pro rata to the
Noteholders of each Class entitled thereto. Upon written notice thereof, the
Indenture Trustee shall notify the Person in whose name a Note is registered
at the close of business on the Record Date preceding the Distribution Date on
which the final installment of principal of and interest on such Note is
expected to be paid. Such notice shall specify that such final installment
will be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for payment
of such installment. Notices in connection with redemptions of Notes shall be
mailed to Noteholders as provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on
the Notes, the Issuer shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) at the applicable Interest Rate in
any lawful manner on the next Distribution Date.
Section 2.09 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Note Registrar, be delivered to the Note Registrar and
shall be promptly cancelled by the Note Registrar. The Issuer may at any time
deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by
the Indenture Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.09, except as
expressly permitted by this Indenture. All cancelled Notes may be held or
disposed of by the Note Registrar in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be destroyed or returned to it; provided, that such
Issuer Order is timely and the Notes have not been previously disposed of by
the Note Registrar.
Section 2.10 Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to or on behalf of The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Issuer. The
Book-Entry Notes shall be registered initially on the Note Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner thereof will receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section 2.10 shall be in
full force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Indenture (including the payment of principal of and interest on
the Notes and the giving of instructions or directions hereunder) as
the sole holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this
Section 2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control;
(iv) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency or the Clearing Agency Participants pursuant to the
Note Depository Agreement. Unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of Holders
of Notes evidencing a specified percentage of the Outstanding Amount
of the Notes (or any Class thereof, including the Controlling Class),
the Clearing Agency shall be deemed to represent such percentage only
to the extent that it has received instructions to such effect from
Note Owners or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Outstanding Amount of the Notes (or Class thereof, including the
Controlling Class) and has delivered such instructions to the
Indenture Trustee.
Section 2.11 Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes shall have been issued to such Note Owners
pursuant to Section 2.12, the Indenture Trustee shall give all such notices
and communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.12 Definitive Notes. If (i) the Depositor advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Book-Entry
Notes and the Depositor or the Indenture Trustee is unable to locate a
qualified successor, (ii) the Depositor, at its sole option and with the
consent of the Indenture Trustee, elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Termination Event, Note Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of such Note Owners, then the Clearing Agency
shall notify all Note Owners and the Indenture Trustee of the occurrence of
any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Note Registrar of the typewritten
Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Note Registrar
upon an Issuer Order shall authenticate the Definitive Notes in accordance
with the written instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee and the Note Registrar shall recognize the
Holders of the Definitive Notes as Noteholders.
Section 2.13 Tax Treatment. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness of the Issuer secured by the Trust Estate. The
Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note (and each Note Owner by its acceptance of an interest in
the applicable Book-Entry Note), agree to treat the Notes for federal, state
and local income and franchise tax purposes as indebtedness.
ARTICLE III
COVENANTS
Section 3.01 Payment of Principal and Interest. The Issuer will
duly and punctually pay the principal of and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.02, on each Distribution Date, the Issuer
will cause to be distributed all amounts deposited pursuant to the Sale and
Servicing Agreement into the Note Interest Distribution Account and the
Principal Distribution Account (i) for the benefit of the Class A-1 Notes, to
the Class A-1 Noteholders, (ii) for the benefit of the Class A-2 Notes, to the
Class A-2 Noteholders, (iii) for the benefit of the Class A-3 Notes, to the
Class A-3 Noteholders, (iv) for the benefit of the Class A-4 Notes, to the
Class A-4 Noteholders, (v) for the benefit of the Class B Notes, to the Class
B Noteholders, (vi) for the benefit of the Class C Notes, to the Class C
Noteholders and (vii) for the benefit of the Class D Notes, to the Class D
Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
Section 3.02 Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. Such office will initially be
located at the Corporate Trust Office. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Indenture Trustee, and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section 3.03 Money for Payments To Be Held in Trust. All
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Collection Account, the Note Interest
Distribution Account and the Principal Distribution Account shall be made on
behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and
no amounts so withdrawn from the Collection Account, the Note Interest
Distribution Account or the Principal Distribution Account for payments of
Notes shall be paid over to the Issuer except as provided in this Section.
On or before each Distribution Date and Redemption Date, the
Issuer shall deposit or cause to be deposited in the Note Interest
Distribution Account and the Principal Distribution Account an aggregate sum
sufficient to pay the amounts then becoming due under the Notes, such sum to
be held in trust for the benefit of the Persons entitled thereto, and (unless
the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent (other than the
Indenture Trustee) to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any
default by the Issuer (or any other obligor on the Notes) of which it
has actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any
such default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust by
such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust
for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith.
The Indenture Trustee may at any time resign as Paying Agent by
giving at least thirty (30) days' prior written notice of resignation to the
Issuer.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged
from such trust and be paid upon Issuer Request to the Issuer; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof (but only to the extent of the amounts so paid
to the Issuer), and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided,
however, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than thirty
(30) days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer. The Indenture Trustee shall
also adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called
but have not been surrendered for redemption or whose right to or interest in
moneys due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each such Holder).
Section 3.04 Existence. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States
of America, in which case the Issuer will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.05 Protection of Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto
and hereby authorizes, on or after the Closing Date, the filing by the Owner
Trustee, on its behalf, of all such financing statements, continuation
statements, instruments of further assurance and other instruments, and will
take such other action necessary or advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry out
more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate
and the rights of the Indenture Trustee and the Noteholders in such
Trust Estate against the claims of all persons and parties.
Section 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall cause to be
furnished to the Indenture Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto,
and any other requisite documents, and with respect to the execution and
filing of any financing statements and continuation statements, as are
necessary to perfect and make effective the lien and security interest of this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before March 15, in each calendar year,
beginning in 2004, the Issuer shall furnish to the Indenture Trustee and the
Rating Agencies an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements
as is necessary to maintain the lien and security interest created by this
Indenture and reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Indenture until March 15 in the following calendar year.
Section 3.07 Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use
its reasonable best efforts not to permit any action to be taken by others
that would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Trust Estate or
that would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as expressly provided in this Indenture, the
Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons with
notification to the Rating Agencies to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Owner Trustee to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all
of its obligations and agreements contained in this Indenture, the Basic
Documents and in the instruments and agreements included in the Trust Estate,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of
this Indenture and the Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without
the consent of either the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of each Class of Notes, voting separately.
(d) If the Issuer shall have knowledge of the
occurrence of a Servicer Termination Event under the Sale and Servicing
Agreement, the Issuer shall promptly notify the Indenture Trustee and the
Rating Agencies thereof, and shall specify in such notice the action, if any,
the Issuer is taking with respect to such default.
(e) [Reserved]
(f) Upon any termination of the Servicer's rights and
powers pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee thereof. As soon as a successor servicer (a
"Successor Servicer") is appointed, the Issuer shall notify the Indenture
Trustee in writing of such appointment, specifying in such notice the name and
address of such Successor Servicer.
(g) Without limitation of the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer hereby agrees (i) except to
extent otherwise provided in any Basic Documents, that it will not, without
the prior written consent of the Indenture Trustee acting at the written
direction of the Holders of at least a majority in Outstanding Amount of the
Notes, amend, modify, waive, supplement, terminate or surrender, or agree to
any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral or the Basic Documents, or waive timely
performance or observance by the Servicer or the Seller under the Sale and
Servicing Agreement; and (ii) that any such amendment shall not (A) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
distributions that are required to be made for the benefit of the Noteholders
or (B) reduce the aforesaid percentage of the Notes that is required to
consent to any such amendment, without the consent of the Holders of all
Outstanding Notes. If the Indenture Trustee acting at the written direction of
such Holders agrees to any such amendment, modification, supplement or waiver,
the Indenture Trustee agrees, promptly following a written request by the
Issuer to do so, to execute and deliver, at the Issuer's own expense, such
agreements, instruments, consents and other documents as the Issuer may deem
necessary or appropriate in the circumstances.
(h) The Issuer (or the Servicer on its behalf) shall
maintain its computer systems so that, from and after the time of the Grant
under this Indenture of the Receivables referenced in such Grant, the Issuer's
(or the Servicer's on its behalf) master computer records (including any
backup archives) that refer to a Receivable shall be coded to reflect that
such Receivable is part of the portfolio of Receivables that is the subject of
this Indenture and is owned by the Issuer. At or prior to the Closing Date,
the Issuer shall deliver to the Indenture Trustee a computer file, microfiche
list or printed list containing a true and complete list of all Receivables
subject to this Indenture. Such file or list shall be marked as Schedule A to
this Indenture, delivered to the Indenture Trustee as confidential and
proprietary, and is hereby incorporated into and made a part of this
Indenture. The Issuer further agrees not to alter the code referenced in the
first sentence of this paragraph with respect to any Receivable during the
term of this Indenture unless and until such Receivable's Principal Balance
has been paid in full or such Receivable has been purchased or repurchased in
accordance with the Basic Documents. Indication of such Receivables' inclusion
in the portfolio shall be deleted from or modified on the Issuer's (or the
Servicer's on its behalf) computer systems when, and only when, the related
Receivable shall have been paid in full or purchased or repurchased in
accordance with the Basic Documents.
Section 3.08 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this
Indenture, the Assignment, Assumption and Recognition Agreement or the
Sale and Servicing Agreement, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Issuer, including
those included in the Trust Estate;
(ii) claim any credit on, or make any deduction
from the principal or interest payable in respect of, the Notes (other
than amounts properly withheld from such payments under the Code) or
assert any claim against any present or former Noteholder by reason of
the payment of the taxes levied or assessed upon any part of the Trust
Estate; or
(iii) (A) permit the validity or effectiveness of
this Indenture to be impaired, or permit the lien of this Indenture to
be amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than
the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens,
mechanics' liens and other liens that arise by operation of law, in
each case on any of the Financed Vehicles and arising solely as a
result of an action or omission of the related Obligor) or (C) permit
the lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other lien)
security interest in the Trust Estate.
Section 3.09 Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and the Rating Agencies within 75 days after
the end of each year (commencing with the year 2004), an Officer's Certificate
stating that:
(i) a review of the activities of the Issuer during
such year and of its performance under this Indenture has been made;
and
(ii) based on such review, the Issuer has complied
with all conditions and covenants under this Indenture throughout such
year or, if there has been a default in its compliance with any such
condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
Section 3.10 Issuer May Consolidate, etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
State and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse federal tax consequence to the Issuer, any Noteholder
or any Certificateholder;
(v) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act) in
all material respects.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Trust Estate, to any
Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted (A) shall be a United States
citizen or a Person organized and existing under the laws of the
United States of America or any State, (B) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agrees by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of Holders
of the Notes, (D) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless the
Issuer and the Indenture Trustee against and from any loss, liability
or expense arising under or related to this Indenture and the Notes
and (E) expressly agrees by means of such supplemental indenture that
such Person (or, if a group of Persons, one specified Person) shall
make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse federal tax consequence to the Issuer, any Noteholder
or any Certificateholder;
(v) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act) in
all material respects.
Section 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets
and properties of the Issuer pursuant to Section 3.10(b), GS Auto Loan Trust
2003-1 will be released from every covenant and agreement of this Indenture to
be observed by or performed on the part of the Issuer with respect to the
Notes immediately upon the delivery of written notice to the Indenture Trustee
stating that GS Auto Loan Trust 2003-1 is to be so released.
Section 3.12 No Other Business. The Issuer shall not engage in
any business other than financing, purchasing, owning, selling and managing
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and any activities incidental thereto. The Issuer shall not fund the
purchase of any receivables other than the Receivables.
Section 3.13 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.14 Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.10, 4.11, 4.12 and Article VII of the Sale
and Servicing Agreement.
Section 3.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Trust Agreement, the Sale and Servicing
Agreement or this Indenture, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an instrument having the
effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any Person.
Section 3.16 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
Section 3.17 [Reserved]
Section 3.18 Restricted Payments. Except with respect to the
proceeds from issuance of the Notes, the Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made,
distributions as contemplated by, and to the extent funds are available for
such purpose under, the Sale and Servicing Agreement, this Indenture or the
Trust Agreement. The Issuer will not, directly or indirectly, make payments to
or distributions from the Note Interest Distribution Account, the Principal
Distribution Account or the Collection Account except in accordance with this
Indenture and the Basic Documents.
Section 3.19 Notice of Events of Default. The Issuer shall give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, of which the Issuer has actual knowledge, and of
each default on the part of the Servicer or the Depositor of its obligations
under the Sale and Servicing Agreement, of which the Issuer has actual
knowledge.
Section 3.20 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and so such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 3.21 Perfection Representation. The Issuer further
makes all the representations, warranties and covenants set forth in Schedule
B.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution
of mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections
3.03, 3.04, 3.05, 3.08, 3.10, 3.11, 3.12, 3.13, 3.15, 3.16 and 3.18, (v) the
rights, obligations and immunities of the Indenture Trustee, the Note
Registrar, the Paying Agent hereunder (including the rights of the Indenture
Trustee, the Note Registrar and the Paying Agent under Section 6.07 and the
obligations set forth in Section 4.02) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee for the benefit of the Indenture Trustee payable to all or
any of them, and the Indenture Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when
(A) either:
(1) all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed, lost
or stolen and that have been replaced or paid as provided in
Section 2.06 and (ii) Notes for the payment of which money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03) have
been delivered to the Note Registrar for cancellation; or
(2) all Notes not theretofore delivered to the
Note Registrar for cancellation:
a. have become due and payable,
b. will become due and payable within one
year of the Class D Final Scheduled Distribution Date,
or
c. are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer;
and the Issuer, in the case of a, b, or c above, has
irrevocably deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (that
will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for cancellation when due to
the applicable Final Scheduled Distribution Date or Redemption
Date (if Notes shall have been called for redemption pursuant
to Section 10.01), as the case may be;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer including, but not limited
to, fees and expenses due to the Indenture Trustee; and
(C) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each meeting
the applicable requirements of Section 11.01(a) and, subject to
Section 11.02, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Section 4.02 Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.01 hereof shall be held in
trust and applied by it, on behalf of the Indenture Trustee, in accordance
with the provisions of the Notes and this Indenture to the payment, either
directly or through any Paying Agent, to the Holders of the particular Notes
for the payment or redemption of which such moneys have been deposited with
the Indenture Trustee, of all sums due and to become due thereon for principal
and interest; but such moneys need not be segregated from other funds except
to the extent required herein, in the Sale and Servicing Agreement or by law.
Section 4.03 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon written demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.03; and thereupon, such
Paying Agent shall be released from all further liability with respect to such
moneys.
Section 4.04 Release of Collateral. Subject to Section 11.01
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt by it of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA ▇▇.▇▇. 314(c) and 314(d)(1) or
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
ARTICLE V
REMEDIES
Section 5.01 Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Note
of the Controlling Class when the same becomes due and payable, and
such default shall continue for a period of thirty-five (35) days;
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable;
(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other than
a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section 5.01 specifically dealt with), or
any representation or warranty of the Issuer made in this Indenture or
in any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of thirty (30) days after there shall have been given, by
registered or certified mail, to the Issuer by the Indenture Trustee
or to the Issuer and the Indenture Trustee by the Holders of at least
25% of the Outstanding Amount of the Controlling Class, a written
notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a
notice of Default hereunder;
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the Issuer or
any substantial part of the Trust Estate in an involuntary case under
any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the
Trust Estate, or the ordering of the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Issuer
to the entry of an order for relief in an involuntary case under any
such law, or the consent by the Issuer to the appointment of or taking
of possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
any action by the Issuer in furtherance of any of the foregoing.
The Issuer shall, upon its actual knowledge of such, promptly
deliver to the Indenture Trustee written notice in the form of an Officer's
Certificate of any event that with the giving of notice and the lapse of time
would become an Event of Default under clause (iii), its status and what
action the Issuer is taking or proposes to take with respect thereto.
Section 5.02 Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default shall occur and be continuing, then and
in every such case, the Indenture Trustee may, or the Indenture Trustee as
directed in writing by the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Class, shall, declare,
by written notice to the Issuer, all the Notes to be then immediately due and
payable, and upon any such declaration the Outstanding Amount of such Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable pursuant to the last
paragraph of Section 5.06 of the Sale and Servicing Agreement. Notwithstanding
anything to the contrary in this clause (a), if an Event of Default specified
in clauses (iv) or (v) of Section 5.01 shall have occurred and be continuing
at any time when the Indenture Trustee is the Controlling Party, the Notes
shall become immediately due and payable at par, together with accrued
interest thereon.
(b) At any time after such declaration of acceleration
of maturity has been made and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V provided, the Holders of Notes representing a majority of the
Outstanding Amount of the Controlling Class, by written notice to the Issuer
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due hereunder or
upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses and disbursements
of the Indenture Trustee and its agents and counsel and the reasonable
compensation, expenses and disbursements of the Owner Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the
nonpayment of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in Section
5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee; Authority of the Controlling Party.
(a) The Issuer covenants that if (i) a default is made
in the payment of any interest on any Note when the same becomes due and
payable, and such default continues for a period of thirty-five (35) Business
Days or, (ii) default is made in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, the Issuer will, upon demand of the Indenture Trustee, pay to it, for
the benefit of the Holders of the Notes, the entire amount then due and
payable on such Notes in respect of principal and interest, with interest on
the overdue principal and, to the extent payment at such rate of interest
shall be legally enforceable, on overdue installments of interest at the
related Interest Rate and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses and disbursements of the Indenture Trustee
and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay
such amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor on
such Notes and collect in the manner provided by law out of the Trust Estate
or the property of any other obligor on such Notes, wherever situated, the
moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs, the Indenture
Trustee may, as more particularly provided in Section 5.04, in its discretion
or shall at the written directions of the Holders of at least a majority of
the Outstanding Amount of the Notes proceed to protect and enforce its rights
and the rights of the Noteholders, by such appropriate Proceedings as the
Indenture Trustee or the Indenture Trustee at the written direction of the
Holders of at least a majority of the Outstanding Amount of the Notes shall
reasonably deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture Trustee by
this Indenture or by law.
(d) In case there shall be pending, relative to the
Issuer or any other obligor on the Notes or any Person having or claiming an
ownership interest in the Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, or liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other comparable
Proceedings relative to the Issuer or other obligor on the Notes, or to the
creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered,
by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the
entire amount of principal and interest owing and unpaid in respect of
the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
reasonable out-of-pocket expenses and liabilities incurred, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law or
regulation, to vote on behalf of the Holders of Notes in any election
of a trustee, a standby trustee or a Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the Noteholders and
of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Holders of Notes allowed in any
Proceedings relative to the Issuer, its creditors or its property; and
any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such
Noteholders to make payments to the Indenture Trustee and, in the
event that the Indenture Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation
to the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to
authorize the Indenture Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of
any Holder thereof or to authorize the Indenture Trustee to vote in respect of
the claim of any Noteholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof
in any Proceedings relative thereto, and any such Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture
Trustee (and also any Proceedings involving the interpretation of any
provision of this Indenture to which the Indenture Trustee shall be a party),
the Indenture Trustee shall be held to represent all the Holders of the Notes,
and it shall not be necessary to make any Noteholder a party to any such
Proceedings.
Section 5.04 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing, the Indenture Trustee may do one or more of the following (subject
to Section 5.06):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then
payable on the Notes or under this Indenture with respect thereto,
whether by declaration or otherwise, enforce any judgment obtained and
collect from the Issuer and any other obligor on such Notes moneys
adjudged due;
(ii) institute Proceedings from time to time for
the complete or partial foreclosure of this Indenture with respect to
the Trust Estate;
(iii) exercise any remedies of a secured party
under the UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof
or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; provided,
however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default unless, (A)
the Holders of 100% of the Outstanding Amount of the Controlling Class
consent thereto, or (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full
all amounts then due and unpaid on such Notes in respect of principal
and interest, or (C) with respect to an Event of Default set forth in
Section 5.01(i) or (ii), the Indenture Trustee determines that the
Trust Estate will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and the
Indenture Trustee obtains the consent of Holders of at least two
thirds of the Outstanding Amount of the Controlling Class.
In determining such sufficiency or insufficiency with respect
to clause (B) and (C), the Indenture Trustee may, at the Issuer's expense and
paid pursuant to Section 6.07, but need not, obtain and conclusively rely upon
an opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) If the Trust Estate is sold or liquidated pursuant
to Section 5.04(a)(iv) and the Indenture Trustee collects any money or
property pursuant to this Article V, it shall pay out the money or property in
the following order:
FIRST: to the Indenture Trustee, the Paying Agent and the Note
Registrar (for amounts due under Section 6.07), and then to the
Servicer and the Owner Trustee the amounts due under Sections
5.06(b)(i) and (ii) of the Sale and Servicing Agreement;
SECOND: to the Class A Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A Notes in respect of interest (including any
premium);
THIRD: to Holders of the Class A-1 Notes for amounts due and unpaid on
the Class A-1 Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-1 Notes in respect of principal, until the
Outstanding Amount of the Class A-1 Notes is reduced to zero;
FOURTH: to Holders of the Class A-2 Notes for amounts due and unpaid
on the Class A-2 Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-2 Notes in respect of principal, until the
Outstanding Amount of the Class A-2 Notes is reduced to zero;
FIFTH: to Holders of the Class A-3 Notes for amounts due and unpaid on
the Class A-3 Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-3 Notes in respect of principal, until the
Outstanding Amount of the Class A-3 Notes is reduced to zero;
SIXTH: to Holders of the Class A-4 Notes for amounts due and unpaid on
the Class A-4 Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-4 Notes in respect of principal, until the
Outstanding Amount of the Class A-4 Notes is reduced to zero;
SEVENTH: to the Class B Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class B Notes in respect of interest (including any
premium);
EIGHTH: to Holders of the Class B Notes for amounts due and unpaid on
the Class B Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Class B Notes in respect of principal, until the Outstanding
Amount of the Class B Notes is reduced to zero;
NINTH: to the Class C Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class C Notes in respect of interest (including any
premium);
TENTH: to Holders of the Class C Notes for amounts due and unpaid on
the Class C Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Class C Notes in respect of principal, until the Outstanding
Amount of the Class C Notes is reduced to zero;
ELEVENTH: to the Class D Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class D Notes in respect of interest (including any
premium);
TWELFTH: to Holders of the Class D Notes for amounts due and unpaid on
the Class D Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Class D Notes in respect of principal, until the Outstanding
Amount of the Class D Notes is reduced to zero; and
THIRTEENTH: any excess amounts remaining after making the payments
described in clauses first through twelfth above, to be applied
pursuant to Section 5.06(b) of the Sale and Servicing Agreement to the
extent that any amounts payable thereunder have not been previously
paid pursuant to clauses first through twelfth above.
The Indenture Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section. At least fifteen (15) days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the record date, the payment date and the amount
to be paid.
Section 5.05 Optional Preservation of the Receivables. If the
Indenture Trustee is the Controlling Party and the Notes have been declared to
be due and payable under Section 5.02 following an Event of Default, and such
declaration and its consequences have not been rescinded and annulled, the
Indenture Trustee may, but need not, elect to maintain possession of the Trust
Estate. It is the desire of the parties hereto and the Noteholders that there
be at all times sufficient funds for the payment of principal of and interest
on the Notes, and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether or not to maintain possession of the Trust Estate, the
Indenture Trustee may, at the expense of the Issuer and paid pursuant to
Section 6.07, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
Section 5.06 Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(i) such Holder has previously given written notice
to the Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Controlling Class have made written request
to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities that may be incurred in complying with such request;
(iv) the Indenture Trustee for sixty (60) days
after its receipt of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
(v) no direction inconsistent with such written
request has been given to the Indenture Trustee during such sixty
(60)-day period by the Holders of a majority of the Outstanding Amount
of the Controlling Class.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes pursuant to this Section, each representing less than a majority of the
Outstanding Amount of the Controlling Class, the Indenture Trustee shall act
at the direction of the group representing the greater percentage of the
Outstanding Amount of Notes and if there is no such group then in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
Section 5.07 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note
or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.08 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
Section 5.09 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee, or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or the Noteholders, as the case may be.
Section 5.11 Control by Controlling Class. If the Indenture
Trustee is the Controlling Party, the Holders of a majority of the Outstanding
Amount of the Controlling Class shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with
any rule of law or with this Indenture;
(ii) the Indenture Trustee shall not sell or
liquidate the Trust Estate except pursuant to the express terms of
Section 5.04(a)(iv); and
(iii) the Indenture Trustee may take any other
action deemed proper by the Indenture Trustee that is not inconsistent
with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Noteholders not consenting to such action.
Section 5.12 Waiver of Past Defaults. Prior to the declaration
of the acceleration of the maturity of the Notes as provided in Section 5.02,
the Holders of Notes of not less than a majority of the Outstanding Amount of
the Controlling Class may, waive any past Default or Event of Default and its
consequences except a Default (a) in payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof that
cannot be modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Issuer, the Indenture Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of a Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or, in the case of a right or remedy under
this Indenture which is instituted by the Controlling Class, more than 10% of
the Controlling Class) or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance
with Section 5.04(b).
Section 5.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture
Trustee to do so, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and
observance by HNB, the Seller or the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or the Assignment, Assumption and Recognition Agreement, as
applicable, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Sale and Servicing Agreement or the Assignment, Assumption and Recognition
Agreement to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of HNB, the
Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by HNB,
the Seller or the Servicer of each of their obligations under the Sale and
Servicing Agreement or the Assignment, Assumption and Recognition Agreement;
provided, however, nothing herein shall in any way impose on the Indenture
Trustee the duty to monitor the performance of HNB, the Seller or the Servicer
of any of their liabilities, duties or obligations under any Basic Document.
(b) If an Event of Default has occurred, the Indenture
Trustee may, and at the direction (which direction shall be in writing) of the
Holders of not less than a majority of the Outstanding Amount of the
Controlling Class shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against HNB, the Seller or the Servicer under or in
connection with the Sale and Servicing Agreement and the Assignment,
Assumption and Recognition Agreement including the right or power to take any
action to compel or secure performance or observance by HNB, the Seller or the
Servicer, as the case may be, of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement and the Assignment,
Assumption and Recognition Agreement, as the case may be, and any right of the
Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is
continuing of which a Responsible Officer of the Indenture Trustee has actual
knowledge, the Indenture Trustee shall exercise the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
the face value of the certificates, reports, resolutions, documents,
orders, opinions or other instruments furnished to the Indenture
Trustee and conforming to the requirements of this Indenture;
provided, however, that the Indenture Trustee shall not be responsible
for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument;
however, with respect to any such certificates or opinions that are
required to be delivered to the Indenture Trustee pursuant to this
Indenture, the Indenture Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture. If any such instrument is found not to conform in
any material respect to the requirements of this Agreement, the
Indenture Trustee shall notify the Noteholders of such instrument in
the event that the Indenture Trustee, after so requesting, does not
receive a satisfactorily corrected instrument.
(c) The Indenture Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to the terms of
this Indenture or any other Basic Document.
(d) Every provision of this Indenture that in any way
relates to the Indenture Trustee is subject to paragraphs (a), (b), (c) and
(g) of this Section.
(e) The Indenture Trustee shall not be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including principal of or interest on the Notes, or interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need
not be segregated from other funds except to the extent required by law or the
terms of this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the
Indenture Trustee to advance, expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
(i) In no event shall the Indenture Trustee be
required to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer or any other party under the Sale and
Servicing Agreement.
(j) The Indenture Trustee shall have no duty (A) to
see to any recording, filing, or depositing of this Indenture or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, or (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Estate.
For purposes of this Section 6.01 and Section 8.03(c), the
Indenture Trustee, or a Responsible Officer thereof, shall be charged with
actual knowledge of any default or an Event of Default if a Responsible
Officer actually knows of such default or Event of Default or the Indenture
Trustee receives written notice of such default or Event of Default from the
Issuer, the Servicer or Noteholders owning Notes aggregating not less than 10%
of the Outstanding Amount of the Notes. Notwithstanding the foregoing, the
Indenture Trustee shall not be required to take notice and in the absence of
such actual notice and knowledge, the Indenture Trustee may conclusively
assume that there is no such default or Event of Default.
Section 6.02 Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely on the
face value of any document believed by it to be genuine and to have been
signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate or an Opinion of Counsel from
the appropriate party. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on an Officer's
Certificate or Opinion of Counsel from the appropriate party. The right of the
Indenture Trustee to perform any discretionary act enumerated in this
Indenture or in any Basic Document shall not be construed as a duty of the
Indenture Trustee and the Indenture Trustee shall not be answerable for other
than its negligence or willful misconduct in the performance of such
discretionary act.
(c) The Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys or a custodian or nominee and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of any such agent, attorney or custodian appointed by the Indenture Trustee
with due care.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers; provided, that the Indenture
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult, at the Issuer's
expense (which amount shall be paid in the priority set forth in Section
5.06(b) of the Sale and Servicing Agreement), with counsel and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) In the event that the Indenture Trustee is also
acting as Paying Agent, Note Registrar or collateral agent, the rights and
protections afforded to the Indenture Trustee pursuant to this Article VI
shall be afforded to such Paying Agent, Note Registrar or collateral agent.
(g) The Indenture Trustee shall be under no obligation
to exercise any of the trusts or powers vested in it by this Indenture or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Noteholders, pursuant to the
provisions of this Indenture, unless such Noteholders shall have offered to
the Indenture Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby.
(h) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a
duty, and the Indenture Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to
give any bond or surety in respect of the powers granted hereunder.
(j) The rights, protections and immunities of the
Indenture Trustee under this Indenture set forth in subsections (a), (b), (c),
(d), (e) and (i) of this Section 6.02 shall also apply to the Indenture
Trustee under each other Basic Document to which the Indenture Trustee is a
party.
Section 6.03 Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any
Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Indenture Trustee must comply with Sections
6.11 and 6.12.
Section 6.04 Disclaimer of Indenture Trustee. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Trust Estate or the Notes, nor
shall the Indenture Trustee be accountable for the Issuer's use of the
proceeds from the Notes, and the Indenture Trustee shall not be responsible
for any statement of the Issuer in the Indenture, any Basic Document or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
Section 6.05 Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice
of the Default within thirty (30) days after it occurs. Except in the case of
a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice to Noteholders if and so long as a
committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
Section 6.06 Reports by Indenture Trustee to Holders. The
Indenture Trustee shall deliver to each Noteholder such information as may be
required to enable such holder to prepare its federal and state income tax
returns.
Section 6.07 Compensation and Indemnity.
(a) The Issuer shall cause the payment to be made to
the Indenture Trustee from time to time compensation for its services to the
extent of and in the priority set forth in Section 5.06(b)(ii) of the Sale and
Servicing Agreement and as outlined in the fee letter from the Indenture
Trustee to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp., dated March 27, 2003.
The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause
reimbursement to be made to the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services, out of the Trust to the
extent of and in accordance with the priority in Section 5.06(b)(ii) and (xi)
of the Sale and Servicing Agreement. Such expenses shall include the
reasonable out-of-pocket compensation and expenses, disbursements and advances
of the Indenture Trustee's agents, counsel, accountants and experts. The
Issuer shall indemnify the Indenture Trustee against any and all loss,
liability or expense (including attorneys' fees and expenses) incurred by it
in connection with the administration of this trust and the performance of its
duties hereunder or any other Basic Document to which the Indenture Trustee is
a party out of the Trust to the extent of and in accordance with the priority
in Section 5.06(b)(ii) and (xi) of the Sales and Servicing Agreement. The
Indenture Trustee shall notify the Issuer promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer
shall not relieve the Issuer of its obligations hereunder if no material
prejudice to the Issuer shall have resulted from such failure and, in such
event, only to the extent of such prejudice. The Issuer will not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
As security for the performance of the obligations of the Issuer under this
Section the Indenture Trustee shall have a lien prior to the Holders upon all
property and funds held or collected by the Indenture Trustee as such, except
funds held in trust for the payment of principal of or interest on the Notes.
The Issuer's payment obligations and indemnities to the
Indenture Trustee pursuant to this Section shall survive the discharge of this
Indenture or the earlier resignation or removal of the Indenture Trustee. When
the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.01(iv) or (v) with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee.
(a) No resignation or removal of the Indenture Trustee
and no appointment of a successor Indenture Trustee shall become effective
until the acceptance of appointment by the successor Indenture Trustee
pursuant to this Section 6.08(a). The Indenture Trustee may resign at any time
by so notifying the Issuer and each Rating Agency. The Holders of a majority
in Outstanding Amount of the Controlling Class may remove the Indenture
Trustee by so notifying the Indenture Trustee and may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt
or insolvent;
(iii) a receiver or other public officer takes
charge of the Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes
incapable of acting; or
(v) the Indenture Trustee breaches any
representation, warranty or covenant made by it under any Basic
Document.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
retiring Indenture Trustee shall be paid all amounts owed to it upon its
resignation or removal. The successor Indenture Trustee shall mail a notice of
its succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee. The retiring Indenture Trustee shall not be liable for the
acts or omissions of any Successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
sixty (60) days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the Holders of a majority in
Outstanding Amount of the Controlling Class may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's obligations under Section 6.07 shall
continue for the benefit of the retiring Indenture Trustee.
Section 6.09 Successor Indenture Trustee by Merger.
(a) If the Indenture Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust
business or assets to, another Person, the resulting, surviving or transferee
Person without any further act shall be the successor Indenture Trustee;
provided, that such Person shall be qualified and eligible under Section 6.11.
The Indenture Trustee shall provide the Rating Agencies notice of any such
transaction.
In the event that the Indenture Trustee is also acting as the
Note Registrar, then, in case at the time such successor or successors by
merger, conversion or consolidation to the Note Registrar shall succeed to the
obligations of the Note Registrar any of the Notes shall have been
authenticated but not delivered, any such successor to the Note Registrar may
adopt the certificate of authentication of any predecessor trustee and deliver
such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Note Registrar may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Note Registrar; and in all such cases such
certificates shall have the full force that it is anywhere in the Notes or in
this Indenture provided that the certificate of the Note Registrar shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-trustee
or co-trustees, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Trust Estate, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture 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 Indenture 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 Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder (including the Indenture
Trustee) shall be personally liable by reason of any act or omission
of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture 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 Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. (a) The Indenture
Trustee shall at all times satisfy the requirements of TIA ss. 310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition, and the time deposits of the Indenture Trustee shall be rated at
least "A-1" by Standard & Poor's and "P-1" by Moody's. The Indenture Trustee
shall comply with TIA ss. 310(b), including the optional provision permitted
by the second sentence of TIA ss. 310(b)(9); provided, however, that there
shall be excluded from the operation of TIA ss. 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
(b) Within ninety (90) days after ascertaining the
occurrence of an Event of Default which shall not have been cured or waived,
unless authorized by the Commission, the Indenture Trustee shall resign with
respect to the Class A Notes, the Class B Notes, the Class C Notes and/or the
Class D Notes in accordance with Section 6.08 of this Indenture, and the
Issuer shall appoint a successor Indenture Trustee for each of such Classes of
Notes, as applicable, so that there will be separate Indenture Trustees for
the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes.
In the event the Indenture Trustee fails to comply with the terms of the
preceding sentence, the Indenture Trustee shall comply with clauses (ii) and
(iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a
successor Indenture Trustee with respect to any Class of Notes pursuant to
this Section 6.11, the Issuer, the retiring Indenture Trustee and the
successor Indenture Trustee with respect to such Class of Notes shall execute
and deliver an indenture supplemental hereto wherein each successor Indenture
Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the
Class to which the appointment of such successor Indenture Trustee relates,
(ii) if the retiring Indenture Trustee is not retiring with respect to all
Classes of Notes, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each Class as to which
the retiring Indenture Trustee is not retiring shall continue to be vested in
the Indenture Trustee and (iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
Section 6.12 Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.13 Waiver of Setoffs. The Indenture Trustee hereby
expressly waives any and all rights of setoff that the Indenture Trustee may
otherwise at any time have under applicable law with respect to any Trust
Account and agrees that amounts in the Trust Accounts shall at all times be
held and applied solely in accordance with the provisions hereof and of the
other Basic Documents.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Note Registrar To Furnish Indenture Trustee and
Owner Trustee Names and Addresses of Noteholders. The Note Registrar will
furnish or cause to be furnished to the Indenture Trustee and the Owner
Trustee at such times as the Indenture Trustee or the Owner Trustee may
request in writing, within thirty (30) days after receipt by the Note
Registrar of any such request, a list, in such form as the Indenture Trustee
or Owner Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of a date not more than ten (10) days prior to the time
such list is furnished; provided, however, that so long as the Indenture
Trustee is the Note Registrar, no such list shall be required to be furnished
to the Indenture Trustee.
Section 7.02 Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of the
Holders of Notes contained in the most recent list furnished to the Indenture
Trustee as provided in Section 7.01 and the names and addresses of Holders of
Notes received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.01 upon receipt of a new list so furnished. The Indenture Trustee
shall make such list available to the Owner Trustee on written request, and to
the Noteholders upon written request of three (3) or more Noteholders or one
or more Noteholders evidencing not less than 25% of the Outstanding Amount of
the Notes.
(b) Noteholders may communicate pursuant to TIA ss.
312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA ss. 312(c).
Section 7.03 Reports by Issuer.
(a) The Indenture Trustee shall, on behalf of the
Issuer:
(i) file with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Issuer may
be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Commission in accordance with
rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) upon Issuer Request, transmit by mail to all
Noteholders described in TIA ss. 313(c) such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.03(a) and by rules
and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal
year of the Issuer shall end on December 31 of each year.
Section 7.04 Reports by Indenture Trustee. If required by TIA
ss. 313(a), within sixty (60) days after each May 15 beginning with May 15,
2004, the Indenture Trustee shall mail to each Noteholder as required by TIA
ss. 313(c) a brief report dated as of such date that complies with TIA ss.
313(a). The Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission so
long as such filings are required by law or by rules or regulations
promulgated by the Commission. Upon its actual knowledge of such, the Issuer
shall notify the Indenture Trustee if and when the Notes are listed on any
stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in
this Indenture. Except as otherwise expressly provided in this Indenture, if
any default occurs in the making of any payment or performance under any
agreement or instrument that is part of the Trust Estate, the Indenture
Trustee may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
Section 8.02 Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall
cause the Servicer to establish and maintain, in the name of the Indenture
Trustee, for the benefit of the Noteholders and, in the case of the Collection
Account, the Certificateholders, the Trust Accounts as provided in Section
5.01 of the Sale and Servicing Agreement.
(b) The Issuer shall cause the Servicer to deposit all
amounts received in respect of the Receivables (other than Repurchased
Receivables) in the Collection Account as provided in Section 5.02(a) of the
Sale and Servicing Agreement. On or before each Distribution Date, all amounts
required to be deposited in the Note Interest Distribution Account and the
Principal Distribution Account with respect to the related Collection Period
pursuant to Section 5.06(b) of the Sale and Servicing Agreement will be
transferred from the Collection Account to the Note Interest Distribution
Account or the Principal Distribution Account, as applicable.
(c) On each Distribution Date and Redemption Date, the
Indenture Trustee shall distribute all amounts on deposit in the Note Interest
Distribution Account to the Noteholders in respect of the Notes to the extent
of amounts due and unpaid on the Notes for interest in the amounts and in the
order of priority set forth in Section 5.06(c) of the Sale and Servicing
Agreement (except as otherwise provided in Section 5.06(e) of the Sale and
Servicing Agreement and Section 5.04(b) hereof).
(d) On each Distribution Date and Redemption Date, the
Indenture Trustee shall distribute all amounts on deposit in the Principal
Distribution Account to the Noteholders in respect of the Notes to the extent
of amounts due and unpaid on the Notes for principal in the amounts and in the
order of priority set forth in Section 5.06(d) of the Sale and Servicing
Agreement (except as otherwise provided in Section 5.06(e) of the Sale and
Servicing Agreement and Section 5.04(b) hereof).
(e) Notwithstanding any other provision of this
Article VIII, and subject to Section 5.04(b):
(i) If the Notes have been accelerated following
the occurrence and during the continuation of an Event of Default
specified in Section 5.01(i), 5.01(ii), 5.01(iv) or 5.01(v), the
Indenture Trustee shall (w) transfer, on behalf of the Indenture
Trustee, the funds on deposit in the Collection Account remaining
after the application of clauses 5.06(b)(i) through (iii) of the Sale
and Servicing Agreement to the Principal Distribution Account to the
extent necessary to reduce the principal amount of all the Class A
Notes to zero, or, (x) if the Class A Notes shall have been paid in
full, to transfer the funds on deposit in the Collection Account
remaining after the application of clauses 5.06(b)(i) through (v) of
the Sale and Servicing Agreement to the Principal Distribution Account
to the extent necessary to reduce the principal amount of all the
Class B Notes to zero, or, (y) if the Class A Notes and Class B Notes
shall have been paid in full, to transfer the funds on deposit in the
Collection Account remaining after the application of clauses
5.06(b)(i) through (vii) of the Sale and Servicing Agreement to the
Principal Distribution Account to the extent necessary to reduce the
principal amount of all the Class C Notes to zero, or, (z) if the
Class A Notes, Class B Notes and Class C Notes shall have been paid in
full, to transfer the funds on deposit in the Collection Account
remaining after the application of clauses 5.06(b)(i) through (ix) of
the Sale and Servicing Agreement to the Principal Distribution Account
to the extent necessary to reduce the principal amount of all the
Class D Notes to zero. Any amounts transferred to the Principal
Distribution Account pursuant to clause (w) shall be applied to the
repayment of principal of the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes and the Class A-4 Notes pro rata based on the
respective Outstanding Amounts of the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes.
(ii) If the Notes have been accelerated following
the occurrence and during the continuation of an Event of Default
specified in Section 5.01(iii), the Indenture Trustee shall transfer
the funds on deposit in the Collection Account remaining after the
application of clauses 5.06(b)(i) through (x) of the Sale and
Servicing Agreement to the Principal Distribution Account to the
extent necessary to reduce the principal amount of all the Notes to
zero.
In the case of an event described in clause (i) or (ii), the
Holders of the Certificates will not receive any distributions until
the principal amount and accrued interest on all the Notes has been
paid in full.
Section 8.03 General Provisions Regarding Accounts. The
Indenture Trustee shall not in any way be held liable by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments
issued by the Indenture Trustee, in its commercial capacity as principal
obligor and not as trustee, in accordance with their terms.
Section 8.04 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses
pursuant to Section 6.07, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property
from the lien of this Indenture, or convey the Indenture Trustee's interest in
the same, in a manner and under circumstances that are not inconsistent with
the provisions of this Indenture. No party relying upon an instrument executed
by the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there
are no Notes Outstanding and all sums due the Indenture Trustee pursuant to
Section 6.07 have been paid in full, release any remaining portion of the
Trust Estate that secured the Notes from the lien of this Indenture and
release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Trust Accounts. The Indenture Trustee shall release property
from the lien of this Indenture pursuant to this Section 8.04(b) only upon
receipt by it of an Issuer Request accompanied by an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA ▇▇.▇▇. 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.01.
(c) The Issuer agrees, upon request by the Servicer
and representation by the Servicer that it has complied with the procedure in
Section 9.01 of the Sale and Servicing Agreement, to render the Issuer Request
to the Indenture Trustee in accordance with Section 4.04, and take such other
actions as are required in that Section.
Section 8.05 Opinion of Counsel. The Indenture Trustee shall
receive at least seven (7) days prior written notice when requested by the
Issuer to take any action pursuant to Section 8.04(b), accompanied by copies
of any instruments involved, and the Indenture Trustee shall also require, as
a condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the rights of the Noteholders in contravention of the provisions of
this Indenture; provided, however, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Trust Estate.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes
but with prior written notice to the Rating Agencies (with copy to the
Indenture Trustee), the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
supplemental indentures hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better
to assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture, or
to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with
the applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for
the benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided, that such action shall not adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture
as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of any of the
Holders of the Notes but with prior notice to the Rating Agencies, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Noteholder; and each Rating Agency shall have
notified the Issuer or the Indenture Trustee in writing that such action will
not result in a reduction, withdrawal or downgrade of the then-current rating
of any Class of Notes. Notwithstanding anything to the contrary in this
Section 9.01(b), if at the time the Issuer and the Indenture Trustee propose
to enter into an indenture or supplemental indenture under this Section
9.01(b) the Issuer is required to be a Qualifying SPE in order for the Seller
to continue to account for the transfer of the Receivables as a sale under
SFAS 140, then prior to the time that the Issuer and the Indenture Trustee
enter into such indenture or supplemental indenture the Issuer shall deliver
to the Indenture Trustee an Accountant's Letter which states that the
amendments to be effected by such indenture or supplemental indenture would
not "significantly change" (within the meaning of SFAS 140) the Permitted
Activities of the Issuer so as to cause the Issuer to fail to qualify as a
Qualifying SPE.
Section 9.02 Supplemental Indentures with Consent of
Noteholders. The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount
of the Notes of the Controlling Class, by Act of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment
of principal of or interest on any Note, or reduce the principal
amount thereof, the Interest Rate thereon or the Redemption Price with
respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or
after the respective due dates thereof (or, in the case of redemption,
on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding
Amount of the Notes or of the Controlling Class, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter (x) the provisions of the
proviso to the definition of the term "Outstanding" or (y) the
definition of "Controlling Class";
(iv) reduce the percentage of the Outstanding
Amount of the Notes or of the Controlling Class required to direct the
Indenture Trustee to direct the Issuer to sell or liquidate the Trust
Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot
be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any Distribution
Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of Notes to
the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(vii) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect to any
part of the Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion or at the advice of counsel
determine whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of
all Notes, whether theretofore or thereafter authenticated and delivered
hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.01 and 6.02, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and all
conditions precedent have been met and any such reliance shall be binding upon
the Holders of all Notes, whether theretofore or thereafter authenticated and
delivered hereunder. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture
or otherwise. The Indenture Trustee shall provide a fully executed copy of any
supplemental indentures to this Indenture to each Rating Agency.
Section 9.04 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Paying Agent,
the Note Registrar, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.05 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Note
Registrar shall, bear a notation in form approved by the Note Registrar as to
any matter provided for in such supplemental indenture. If the Issuer or the
Note Registrar shall so determine, new Notes so modified as to conform, in the
opinion of the Note Registrar and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Note Registrar in exchange for Outstanding Notes.
Section 9.06 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture
Act as then in effect so long as this Indenture shall then be qualified under
the Trust Indenture Act.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01 Redemption. The Outstanding Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer or,
under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates pursuant to Section 9.01 of the Sale
and Servicing Agreement, on any Distribution Date on which the Servicer or
such a Certificateholder exercises its option to purchase the Trust Estate
pursuant to said Section 9.01, for a purchase price equal to the Redemption
Price; provided, that the Issuer has available funds sufficient to pay the
Redemption Price. The Servicer or the Issuer shall furnish the Rating Agencies
and the Indenture Trustee notice of such redemption. If the Outstanding Notes
are to be redeemed pursuant to this Section 10.01, the Servicer or a
Certificateholder evidencing 100% of the percentage interests in the
Certificates, as applicable, shall furnish notice of such election to the
Indenture Trustee not later than twenty (20) days prior to the Redemption Date
and shall deposit the Business Day prior to the Redemption Date with the
Indenture Trustee in the Note Interest Distribution Account and the Principal
Distribution Account, as applicable, the Redemption Price of the Notes to be
redeemed, whereupon all such Outstanding Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.02
to each Holder of the Outstanding Notes.
Section 10.02 Form of Redemption Notice. Notice of redemption
under Section 10.01 shall be given by the Indenture Trustee by first-class
mail, postage prepaid, or by facsimile mailed or transmitted not later than
thirty (30) days prior to the applicable Redemption Date to each Holder of
Outstanding Notes, as of the close of business on the Record Date preceding
the applicable Redemption Date, at such Holder's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Outstanding Notes are to
be surrendered for payment of the Redemption Price (which shall be the
office or agency of the Issuer to be maintained as provided in Section
3.02); and
(iv) that interest on the Outstanding Notes shall
cease to accrue on the Redemption Date.
Notice of redemption of the Outstanding Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect therein, to any Holder of any Note shall not
impair or affect the validity of the redemption of any other Note.
Section 10.03 Notes Payable on Redemption Date. The Outstanding
Notes shall, following notice of redemption as required by Section 10.02 (in
the case of redemption pursuant to Section 10.01), on the Redemption Date
become due and payable at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued interest
is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to
the Indenture Trustee, to take any action under any provision of this
Indenture, the Issuer shall furnish to the Indenture Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and
(ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, except
that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been complied
with.
(b) (i) Prior to the deposit of any Collateral or
other property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety (90) days
of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the fair
value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release
since the commencement of the then-current fiscal year of the Issuer,
as set forth in the certificates delivered pursuant to clause (i)
above and this clause (ii), is 10% or more of the Outstanding Amount
of the Notes, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to
the Issuer as set forth in the related Officer's Certificate is less
than $25,000 or less than one percent of the Outstanding Amount of the
Notes.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such certificate as to
the fair value (within ninety (90) days of such release) of the
property or securities proposed to be released and stating that in the
opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Other than with respect to the release of any
Repurchased Receivable, whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair
value of the property or securities and of all other property, other
than property as contemplated by clause (v) below, or securities
released from the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates required
by clause (iii) above and this clause (iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be
furnished in the case of any release of property or securities if the
fair value thereof as set forth in the related Officer's Certificate
is less than $25,000 or less than one percent of the then Outstanding
Amount of the Notes.
(v) Notwithstanding Section 4.04 or any other
provision of this Section, the Issuer may, without compliance with the
requirements of the other provisions of this Section, (A) collect,
liquidate, sell or otherwise dispose of Receivables and Financed
Vehicles as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Trust Accounts as and
to the extent permitted or required by the Basic Documents.
Section 11.02 Form of Documents Delivered to Indenture Trustee.
In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such
officer's certificate or opinion is based are erroneous. Any such certificate
of an Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller or the
Issuer, stating that the information with respect to such factual matters is
in the possession of the Servicer, the Seller or the Issuer, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof,
it is intended that the truth and accuracy, at the time of the granting of
such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.
Section 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any person
of any such instrument or writing may be proved in any manner that the
Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Notes shall bind
the Holder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Indenture Trustee or the Issuer in reliance thereon, whether
or not notation of such action is made upon such Note.
Section 11.04 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture shall be in writing and, if such request, demand,
authorization, direction, notice, consent, waiver or act of Noteholders is to
be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by
the Issuer, shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office; or
(ii) the Issuer by the Indenture Trustee or by any
Noteholder, shall be sufficient for every purpose hereunder if in
writing and mailed first-class, postage prepaid to the Issuer
addressed to: GS Auto Loan Trust 2003-1, in care of Wilmington Trust
Company, as Owner Trustee, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer. The Issuer shall
promptly transmit any notice received by it from the Noteholders to
the Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed by certified mail, return receipt requested, to
(i) in the case of Moody's, at the following address: ▇▇▇▇▇'▇ Investors
Service, Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and (ii) in the case of Standard & Poor's, at the following address:
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section 11.05 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by such event, at such Holder's address as it appears on the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
a Default or Event of Default.
Section 11.06 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 11.07 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind their respective successors,
co-trustees and agents.
Section 11.08 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.09 Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto (including JPMorgan Chase Bank in its capacities as Note
Registrar and Paying Agent) and their successors hereunder, and the
Noteholders, and any other party secured hereunder, and any other Person with
an ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 11.10 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes or this Indenture) payment need not be made
on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
Section 11.11 Governing Law. THIS INDENTURE SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.12 Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.13 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and upon request and at the expense
of the Servicer accompanied by an Opinion of Counsel (which may be counsel to
the Servicer or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
Section 11.14 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee, the Note Registrar, the Paying
Agent or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller, or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of the
Indenture Trustee, the Note Registrar, the Paying Agent or the Owner Trustee
in its individual capacity, any holder of a beneficial interest in the Issuer,
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood that
the Indenture Trustee, the Note Registrar, the Paying Agent and the Owner
Trustee have no such obligations in their individual capacity). For all
purposes of this Indenture, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI, VII and VIII of the
Trust Agreement.
Section 11.15 No Petition. The Indenture Trustee, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against the Issuer or the
Depositor, or join in any institution against the Issuer or the Depositor, of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
Section 11.16 Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Indenture Trustee
during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Indenture Trustee may only cause the
books of the Issuer to be audited on an annual basis, unless there occurs an
Event of Default hereunder. The Indenture Trustee shall cause its respective
representatives to, hold in confidence all such information except to the
extent such information is publicly available or such disclosure may be
required by law (and all reasonable applications for confidential treatment
are unavailing) and except to the extent that the Indenture Trustee may
reasonably determine with the advice of counsel and after consultation with
the Issuer that such disclosure is consistent with its obligations hereunder.
Section 11.17 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required or deemed provision shall
control.
The provisions of TIA ▇▇.▇▇. 310 through 317 that impose duties
on any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.18 Limitation of Liability. It is expressly
understood and agreed by the parties hereto that (a) this Indenture is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee of GS Auto Loan Trust 2003-1, in the
exercise of the powers and authority conferred and vested in it, (b) each of
the representations, undertakings and agreements herein made on the part of
the Issuer is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and
(d) under no circumstances shall Wilmington Trust Company be personally liable
for the payment of any indebtedness or expenses of the Issuer or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Issuer under this Indenture or any other related
documents.
* * * * *
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
GS AUTO LOAN TRUST 2003-1,
by: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
by: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
JPMORGAN CHASE BANK,
as Indenture Trustee
by: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE A
Schedule of Receivables
[On file with the Indenture Trustee]
SCHEDULE B
Perfection Representation
1. General. The Indenture creates a valid and continuing
security interest (as defined in the UCC) in all of the Issuer's right, title
and interest in and to the Receivables in favor of the Trustee which, (a) is
enforceable upon execution of the Indenture against creditors of and
purchasers from the Issuer as such enforceability may be limited by applicable
debtor relief laws, now or hereafter in effect, and by general principles of
equity (whether considered in a suit at law or in equity), and (b) upon filing
of the financing statements described in clause 4 below will be prior to all
other Liens (other than Liens permitted pursuant to clause 3 below).
2. Characterization. The Receivables constitute "tangible
chattel paper" within the meaning of UCC Section 9-102. The Issuer has taken
all steps necessary to perfect its security interest against the Obligor in
the Financed Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the
Receivables pursuant to the Indenture, the Issuer owns and has good and
marketable title to, or has a valid security interest in, the Receivables free
and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Issuer has caused or will have caused,
within ten (10) days of the Closing Date, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
granted to the Indenture Trustee under the Indenture in the Receivables.
5. Priority. Other than the security interests granted to the
Indenture Trustee pursuant to the Indenture, the Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of
the Receivables, the Issuer has not authorized the filing of and is not aware
of any financing statements against the Issuer that includes a description of
collateral covering the Receivables other than any financing statement (i)
relating to the security interests granted to the Indenture Trustee under the
Indenture (ii) that has been terminated, or (iii) that has been granted
pursuant to the terms of the Basic Documents. None of the tangible chattel
paper that constitutes or evidences the Receivables has any marks or notations
indicating that they are pledged, assigned or otherwise conveyed to any Person
other than Indenture Trustee.
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________1
No. R-__ CUSIP NO. 36292R AA 9
GS AUTO LOAN TRUST 2003-1
1.300% ASSET BACKED NOTE, CLASS A-1
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-1 Notes pursuant to Section 3.01 of the Indenture
dated as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan
Chase Bank, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of April 15, 2004
(the "Class A-1 Final Scheduled Distribution Date") and the Redemption Date,
if any, pursuant to Section 10.01 of the Indenture. Capitalized terms used but
not defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the prior Distribution Date (or, in the case of the first
Distribution Date, from the Closing Date) to but excluding such Distribution
Date. Interest will be computed on the basis of the actual number of days in
the related Interest Accrual Period and a 360-day year. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
1 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS A-1 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 1.300% Asset Backed Notes, Class A-1 (herein called
the "Class A-1 Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class A-1 Notes are
subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the 15th day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class A-1 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-1 Notes shall be made pro rata to the Class A-1
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */__________________________________
Signature Guaranteed:
*/__________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-2
[FORM OF CLASS A-2 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________2
No. R-___ CUSIP NO. 36292R AB 7
GS AUTO LOAN TRUST 2003-1
1.538% ASSET BACKED NOTE, CLASS A-2
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-2 Notes pursuant to Section 3.01 of the Indenture
dated as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan
Chase Bank, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of January 15,
2006 (the "Class A-2 Final Scheduled Distribution Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture. No payments of
principal of the Class A-2 Notes shall be made until the Class A-1 Notes have
been paid in full. Capitalized terms used but not defined herein are defined
in the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
2 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
under the Trust Agreement
By:____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS A-2 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 1.538% Asset Backed Notes, Class A-2 (herein called
the "Class A-2 Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class A-2 Notes are
subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes are paid in full and have no Principal Balance. "Distribution
Date" means the 15th day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class A-2 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-2 Notes shall be made pro rata to the Class A-2
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:___________________________ */_________________________________
Signature Guaranteed:
*/_________________________________
__________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-3
[FORM OF CLASS A-3 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________3
No. R-___ CUSIP NO. 36292R AC 5
GS AUTO LOAN TRUST 2003-1
2.076% ASSET BACKED NOTE, CLASS A-3
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-3 Notes pursuant to Section 3.01 of the Indenture
dated as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan
Chase Bank, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of April 15, 2007
(the "Class A-3 Final Scheduled Distribution Date") and the Redemption Date,
if any, pursuant to Section 10.01 of the Indenture. No payments of principal
of the Class A-3 Notes shall be made until the Class A-1 Notes and the Class
A-2 Notes have been paid in full. Capitalized terms used but not defined
herein are defined in the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
3 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
under the Trust Agreement
By:____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS A-3 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 2.076% Asset Backed Notes, Class A-3 (herein called
the "Class A-3 Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class A-3 Notes are
subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes and the Class A-2 Notes are paid in full and have no Principal
Balance. "Distribution Date" means the 15th day of each month, or, if any such
day is not a Business Day, the next succeeding Business Day, commencing May
15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class A-3 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-3 Notes shall be made pro rata to the Class A-3
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:______________________ */__________________________________
Signature Guaranteed:
*/__________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-4
[FORM OF CLASS A-4 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________4
No. R-___ CUSIP NO. 36292R AD 3
GS AUTO LOAN TRUST 2003-1
2.716% ASSET BACKED NOTE, CLASS A-4
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-4 Notes pursuant to Section 3.01 of the Indenture
dated as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan
Chase Bank, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of June 15, 2010
(the "Class A-4 Final Scheduled Distribution Date") and the Redemption Date,
if any, pursuant to Section 10.01 of the Indenture. No payments of principal
of the Class A-4 Notes shall be made until the Class A-1 Notes, Class A-2
Notes and Class A-3 Notes have been paid in full. Capitalized terms used but
not defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
4 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:_____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS A-4 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 2.716% Asset Backed Notes, Class A-4 (herein called
the "Class A-4 Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class A-4 Notes are
subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes are paid in full and have
no Principal Balance. "Distribution Date" means the 15th day of each month,
or, if any such day is not a Business Day, the next succeeding Business Day,
commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class A-4 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-4 Notes shall be made pro rata to the Class A-4
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */_________________________________
Signature Guaranteed:
*/_________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT B
[FORM OF CLASS B NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________5
No. R-___ CUSIP NO. 36292R AE 1
GS AUTO LOAN TRUST 2003-1
2.621% ASSET BACKED NOTE, CLASS B
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class B Principal Distributable Amount payable in respect of
principal on the Class B Notes pursuant to Section 3.01 of the Indenture dated
as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan Chase
Bank, a New York banking corporation, as Indenture Trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of June 15, 2010 (the "Class B
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.01 of the Indenture. No payments of principal of the Class B
Notes shall be made until the Class A-1 Notes have been paid in full.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
5 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By: _______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS B NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 2.621% Asset Backed Notes, Class B (herein called
the "Class B Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class B Notes are subject
to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture. The Class B Notes
are subordinated in right of payment to the Class A Notes as and to the extent
provided in the Indenture.
Principal of the Class B Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes are paid in full and have no Principal Balance. "Distribution
Date" means the 15th day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class B Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class B Notes shall be made pro rata to the Class B
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class B Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */_________________________________
Signature Guaranteed:
*/_________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT C
[FORM OF CLASS C NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR ▇▇▇▇▇
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) IT IS ENTITLED TO
EXEMPTIVE RELIEF PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION
EXEMPTION OR OTHER APPLICABLE EXEMPTION WITH RESPECT TO ITS ACQUISITION AND
CONTINUED HOLDING OF SUCH NOTE. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE
WITH RESPECT TO WHICH NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL
BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________6
No. R-___ CUSIP NO. 36292R AF 8
GS AUTO LOAN TRUST 2003-1
3.748% ASSET BACKED NOTE, CLASS C
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class C Principal Distributable Amount payable in respect of
principal on the Class C Notes pursuant to Section 3.01 of the Indenture dated
as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan Chase
Bank, a New York banking corporation, as Indenture Trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of June 15, 2010 (the "Class C
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.01 of the Indenture. No payments of principal of the Class C
Notes shall be made until the Class A-1 Notes have been paid in full.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
6 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
under the Trust Agreement
By:____________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS C NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 3.748% Asset Backed Notes, Class C (herein called
the "Class C Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class C Notes are subject
to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture. The Class C Notes
are subordinated in right of payment to the Class A Notes and the Class B
Notes as and to the extent provided in the Indenture.
Principal of the Class C Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes are paid in full and have no Principal Balance. "Distribution
Date" means the 15th day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class C Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class C Notes shall be made pro rata to the Class C
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class C Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:____________________ */_________________________________
Signature Guaranteed:
*/_________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT D
[FORM OF CLASS D NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CLASS D NOTE ("CLASS D NOTE") HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the "SECURITIES
ACT"), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE. ACCORDINGLY, TRANSFER
OF THIS CLASS D NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION
2.04 OF THE INDENTURE. BY ITS ACCEPTANCE OF THIS CLASS D NOTE, THE HOLDER OF
THIS CLASS D NOTE IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE
TRUSTEE THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM
IS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") AND IS
ACQUIRING THIS CLASS D NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS).
NO SALE, PLEDGE OR OTHER TRANSFER OF A NOTE SHALL BE MADE
UNLESS SUCH SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A
PERSON THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION. EACH
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE THE
FOREGOING REPRESENTATIONS. THE DEPOSITOR AND THE INDENTURE TRUSTEE MAY REQUIRE
AN OPINION OF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF
THE NOTES PURSUANT TO CLAUSES (I)(A) OR (C) ABOVE. EACH TRANSFEREE OF A
BENEFICIAL INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE THE FOREGOING
REPRESENTATIONS.
BY ITS ACCEPTANCE OF THIS CLASS D NOTE, THE HOLDER AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT AND IS
NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA
OR SIMILAR LAW, (B) PLAN (AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT
IS SUBJECT TO SECTION 4975 OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS OR ▇▇▇▇▇ PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY,
INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL
ACCOUNT.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN
INTEREST IN ▇▇▇▇▇▇▇ SACHS ASSET BACKED SECURITIES CORP., ▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE COMPANY OR ANY OF THEIR AFFILIATES.
REGISTERED $__________7
No. R-___
CUSIP NO. 36292R AG 6
ISIN NO. US36292RAG65
GS AUTO LOAN TRUST 2003-1
5.500% ASSET BACKED NOTE, CLASS D
GS AUTO LOAN TRUST 2003-1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class D Principal Distributable Amount payable in respect of
principal on the Class D Notes pursuant to Section 3.01 of the Indenture dated
as of April 1, 2003 (the "Indenture"), among the Issuer and JPMorgan Chase
Bank, a New York banking corporation, as Indenture Trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of June 15, 2010 (the "Class D
Final Scheduled Distribution Date") and the Redemption Date, if any, pursuant
to Section 10.01 of the Indenture. No payments of principal of the Class D
Notes shall be made until the Class A-1 Notes have been paid in full.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum
set forth above, on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in the last sentence of Section 3.01 of the
Indenture. Interest on this Note will accrue for each Distribution Date from
and including the 15th day of the preceding calendar month (or, in the case of
the first Distribution Date, from the Closing Date) to and including the 14th
day of the calendar month in which such Distribution Date occurs. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
___________________
7 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Unless the certificate of authentication hereon has been
executed by the Note Registrar whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: GS AUTO LOAN TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:_____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: JPMORGAN CHASE BANK, not in its individual
capacity but solely as Note Registrar
By:_______________________________________
Authorized Signature
REVERSE OF CLASS D NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.500% Asset Backed Notes, Class D (herein called
the "Class D Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class D Notes are subject
to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes (collectively, the "Notes") are and will be secured by the collateral
pledged as security therefor as provided in the Indenture. The Class D Notes
are subordinated in right of payment to the Class A Notes, the Class B Notes
and the Class C Notes as and to the extent provided in the Indenture.
Principal of the Class D Notes will be payable on each
Distribution Date in an amount described on the face hereof only after the
Class A-1 Notes are paid in full and have no Principal Balance. "Distribution
Date" means the 15th day of each month, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing May 15, 2003.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class D Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class D Notes shall be made pro rata to the Class D
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by facsimile prior to such
Distribution Date, and the amount then due and payable shall be payable only
upon presentation and surrender of this Note and shall specify the place where
this Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of
interest at the Class D Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding
Notes may be redeemed in whole, but not in part, at the option of the Servicer
or, under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates on any Distribution Date on or after
the date on which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended, and thereupon one or
more new Notes of authorized denominations and in the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be charged for any registration of transfer or exchange of this
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange subject to certain exceptions set
forth in the Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer, including the Seller or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee, the Note Registrar, the Paying Agent or the
Indenture Trustee or of any successor or assign of the Indenture Trustee, the
Note Registrar, the Paying Agent or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees by accepting the benefits of the Indenture that such Noteholder or Note
Owner will not at any time institute against the Issuer or the Depositor, or
join in any institution against the Issuer or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any of
the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness of
the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a
Note (and each Note Owner by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying
Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name this Note is registered (as of the day of determination
or as of such other date as may be specified in the Indenture) as the owner
hereof for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not this
Note be overdue, and none of the Issuer, the Indenture Trustee, the Note
Registrar, the Paying Agent or any such agent shall be affected by notice to
the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of
Notes representing specified percentages of the Outstanding Amount of the
Notes or of the Controlling Class, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set
forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, JPMorgan Chase Bank in its individual capacity, any
owner of a beneficial interest in the Issuer, the Seller, the Depositor, the
Servicer, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on this Note or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
the Indenture. The Holder of this Note by its acceptance hereof agrees that,
except as expressly provided in the Basic Documents, in the case of an Event
of Default under the Indenture, the Holder shall have no claim against any of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_____________________ */_________________________________
Signature Guaranteed:
*/_________________________________
___________________
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in STAMP or
such other "signature guarantee program" as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT E
FORM OF INVESTMENT LETTER
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of $______________
aggregate principal amount of Class D Notes (the "Securities") of GS Auto Loan
Trust 2003-1 (the "Issuer"), we confirm that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may
not be sold except as permitted in the following sentence. We, understand and
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, (x) that such, Securities are being offered only in a
transaction not involving any public offering within the meaning of the
Securities Act and (y) that such Securities may be resold, pledged or
transferred only (i) to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (the "Seller") or (ii)
to a person or entity that the transferor of the Securities reasonably
believes, after due inquiry is a "qualified institutional buyer" (a "QIB"), as
such term is defined in Rule 144A under the Securities Act ("Rule 144A"),
acting for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are QIBs) and in reliance on,
and to whom notice is given that the sale, pledge or transfer is being made in
reliance on, Rule 144A. We will notify any purchaser of the Securities from us
of the above resale restrictions if then applicable. We further understand
that in connection with any transfer of the Securities by us that the Seller
and the Indenture Trustee may request, and if so requested we will furnish,
such certificates and other information as they may reasonably require to
confirm that any such transfer complies with the foregoing restrictions. We
understand that no sale, pledge or other transfer may be made to any one
person or entity of Securities with a face amount of less than $100,000 and,
in the case of any person or entity acting on behalf of one or more third
parties (other than a bank (as defined in Section 3(a)(2) of the Securities
Act) acting in its fiduciary capacity), of Securities with a face amount of
less than $100,000 for each such third party.
2. We are a QIB and are acquiring the Securities for our own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are QIBs). We are familiar with Rule 144A and are
aware that the seller of the Securities and other parties intend to rely on
the statements made herein and the exemption from the registration
requirements of the Securities Act provided by Rule 144A. In this regard, we
have received (a) a copy of the Prospectus, dated April 14, 2003, the
Prospectus Supplement, dated April 17, 2003 and the Private Placement
Memorandum, dated April 17, 2003, relating to the Securities and (b) such
other written information, if any, as we have requested concerning the
Indenture, the Securities, the Issuer and the trustees. We have reviewed and
understand the material to which reference is made in this paragraph 2, and
understand that risks are involved in an investment in the Securities. We
represent that in making our investment decision to acquire the Securities, we
have not relied on representations, warranties, opinions, projections,
financial or other information or analyses, if any, supplied to us by any
person, including the Issuer, the Seller, the trustees or any of their
respective affiliates except as expressly contained in the Prospectus, the
Prospectus Supplement and the Private Placement Memorandum and in the other
written information, if any, provided pursuant to our request.
3. We (a) are not (i) an "employee benefit plan" (as defined in
section 3(3) of The Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA or
(ii) a "plan" (as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the "Code")) that is subject to Section 4975 of the Code
(each a "Benefit Plan") and (b) are not investing on behalf of or with plan
assets of a Benefit Plan.
4. We understand that the Seller, the Issuer, the Indenture
Trustee and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements, and we agree that if any of
the acknowledgments, representations and agreements deemed to have been made
by us by our purchase of the Securities, for our own account or for one or
more accounts as to each of which we exercise sole investment discretion, are
no longer accurate, we shall promptly notify the Seller, the Issuer and the
Indenture Trustee.
5. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By: ______________________
Name:
Title:
Date:
