Exhibit 10.2
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SALE AND SERVICING AGREEMENT
among
GS AUTO LOAN TRUST 2004-1,
as Issuer,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP.,
as Depositor,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Indenture Trustee,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY,
as Servicer
Dated as of February 24, 2004
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND USAGE..........................................1
ARTICLE II TRANSFERRED ASSETS.............................................1
SECTION 2.1 Conveyance of Transferred Assets; Intent of
the Parties...............................................1
SECTION 2.2 Representations and Warranties of the Depositor
regarding the Receivables.................................1
SECTION 2.3 Repurchase upon Breach....................................2
SECTION 2.4 Custody of Receivable Files...............................3
SECTION 2.5 Representations and Warranties as to the Security
Interest of the Issuer in the Receivables.................4
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND
TRUST PROPERTY.................................................5
SECTION 3.1 Duties of Servicer........................................5
SECTION 3.2 Collection of Receivable Payments.........................5
SECTION 3.3 Realization Upon Receivables..............................6
SECTION 3.4 Maintenance of Security Interests in Financed
Vehicles..................................................6
SECTION 3.5 Covenants of Servicer.....................................6
SECTION 3.6 Purchase of Receivables Upon Breach.......................7
SECTION 3.7 Servicer Fees.............................................8
SECTION 3.8 Monthly Report............................................8
SECTION 3.9 Annual Statement as to Compliance; Notice of Event
of Servicing Termination..................................8
SECTION 3.10 Annual Independent Certified Public Accountant's
Report....................................................9
SECTION 3.11 Access to Certain Documentation and Information
Regarding Receivables.....................................9
SECTION 3.12 Servicer Expenses.........................................9
SECTION 3.13 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002...............................10
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND
CERTIFICATEHOLDERS............................................12
SECTION 4.1 Accounts.................................................12
SECTION 4.2 Collections..............................................13
SECTION 4.3 Application of Collections...............................13
SECTION 4.4 Additional Deposits......................................13
SECTION 4.5 Distributions............................................14
SECTION 4.6 Net Deposits.............................................14
SECTION 4.7 Statements to Noteholders and Certificateholders.........14
SECTION 4.8 Subcertifications of Indenture Trustee in Connection
with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications.......................15
TABLE OF CONTENTS
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(continued)
ARTICLE V THE DEPOSITOR.................................................16
SECTION 5.1 Representations, Warranties and Covenants of
Depositor................................................16
SECTION 5.2 Liability of Depositor; Indemnities......................17
SECTION 5.3 Merger or Consolidation of, or Assumption of the
Obligations of Depositor.................................17
SECTION 5.4 Limitation on Liability of Depositor and Others..........17
SECTION 5.5 Depositor May Own Notes or Certificates..................18
SECTION 5.6 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications............................18
ARTICLE VI THE SERVICER..................................................18
SECTION 6.1 Representations of Servicer..............................18
SECTION 6.2 Indemnities of Servicer..................................19
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of Servicer..................................19
SECTION 6.4 Limitation on Liability of Servicer and Others...........20
SECTION 6.5 Subservicing and Delegation of Duties....................21
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation
and Termination of Receivables Servicers.................21
SECTION 6.7 Servicer May Own Notes or Certificates...................21
ARTICLE VII SERVICING TERMINATION.........................................22
SECTION 7.1 Events of Servicing Termination..........................22
SECTION 7.2 Appointment of Successor Servicer........................23
SECTION 7.3 Notification to Noteholders and Certificateholders.......24
SECTION 7.4 Waiver of Past Events of Servicing Termination...........25
ARTICLE VIII TERMINATION...................................................25
SECTION 8.1 Optional Purchase of All Receivables.....................25
SECTION 8.2 Succession Upon Satisfaction and Discharge
of Indenture.............................................25
ARTICLE IX MISCELLANEOUS PROVISIONS......................................26
SECTION 9.1 Amendment................................................26
SECTION 9.2 Protection of Title to Trust Property....................27
SECTION 9.3 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.....................................28
SECTION 9.4 Notices..................................................29
SECTION 9.5 Severability of Provisions...............................29
SECTION 9.6 No Waiver; Cumulative Remedies...........................30
SECTION 9.7 Third-Party Beneficiaries................................30
SECTION 9.8 Limitation of Liability of Owner Trustee and
Indenture Trustee........................................30
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TABLE OF CONTENTS
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(continued)
SECTION 9.9 Transfers Intended as Sale; Security Interest............30
SECTION 9.10 No Petition..............................................31
SECTION 9.11 Execution in Counterparts................................32
SECTION 9.12 Headings.................................................32
Schedule I Form of Certification to be Provided to the Depositor
by the Indenture Trustee
Appendix A Definitions and Usage
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SALE AND SERVICING AGREEMENT, dated as of February 24, 2004 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), among GS AUTO LOAN TRUST 2004-1 (the "Issuer"), a Delaware
statutory trust, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES CORP., a Delaware
corporation (the "Depositor"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Indenture Trustee (in such capacity, the "Indenture Trustee"), and ▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY, a New York limited partnership, as servicer (in such
capacity, the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of receivables
and related property consisting of motor vehicle retail installment sale
contracts and loans;
WHEREAS, the Servicer is willing to service such receivables on
behalf of the Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined
in Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
TRANSFERRED ASSETS
SECTION 2.1 Conveyance of Transferred Assets; Intent of the Parties.
In consideration of the Issuer's delivery to, or upon the order of, the
Depositor of the Notes and the Certificates, the Depositor does hereby
irrevocably sell, transfer, assign and otherwise convey to the Issuer without
recourse (subject to the obligations herein) all right, title and interest of
the Depositor, whether now owned or hereafter acquired, in and to the
Transferred Assets. The sale, transfer, assignment and conveyance made
hereunder shall not constitute and is not intended to result in an assumption
by the Issuer of any obligation of the Depositor or any other Person to the
Obligors or any other Person in connection with the Receivables and the other
Transferred Assets or any agreement, document or instrument related thereto.
The Depositor and the Issuer intend that the sale, transfer, assignment and
conveyance of the Transferred Assets pursuant to this Section 2.1 shall be a
sale and not a secured borrowing.
SECTION 2.2 Representations and Warranties of the Depositor regarding
the Receivables. The Depositor makes the following representations and
warranties with respect to the Receivables, on which the Issuer relies in
purchasing the Receivables and pledging the same to the Indenture Trustee.
Such representations and warranties speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables by the Depositor
to the Issuer pursuant to this Agreement and the pledge of the Receivables by
the Issuer to the Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. No selection
procedures adverse to the Securityholders have been used by
the Depositor in selecting the Receivables from all
receivables owned by the Depositor which meet the selection
criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been
sold, transferred, assigned or pledged by the Depositor to
any Person other than the Issuer.
(iii) Good Title. Immediately prior to the transfer
and assignment of the Receivables to the Issuer herein
contemplated, each Receivable was free and clear of all
Liens created by the Depositor; and, immediately upon the
transfer thereof, the Issuer has either (i) good and
marketable title to each Receivable, free and clear of all
of all Liens and rights of others to the extent created by
the Depositor and the transfer has been perfected under
applicable law or (ii) a first priority perfected security
interest in the Depositor's rights in each Receivable.
SECTION 2.3 Repurchase upon Breach. (a) Each of the Depositor, the
Servicer, the Issuer and the Indenture Trustee shall inform the other parties
to this Agreement promptly, in writing, upon the discovery by it of any breach
of the Depositor's representations and warranties pursuant to Section 2.2
which materially and adversely affects the interest of the Issuer in any
Receivable. Unless the breach shall have been cured by the last day of the
second Collection Period following written notice to the Indenture Trustee of
such breach, the Depositor shall repurchase any Receivable for which the
interest of the Issuer is materially and adversely affected by such breach as
of such last day (or, at the Depositor's option, the last day of the first
Collection Period following the discovery). Any such breach shall not be
deemed to have a material and adverse effect on the interests of the Issuer if
such breach does not affect the ability of the Issuer to receive and retain
timely payment in full on the related Receivable. The Depositor shall remit
the related Purchase Amount (less any Liquidation Proceeds deposited, or to be
deposited, in the Collection Account with respect to such Receivable pursuant
to Section 3.3), in the manner specified in Section 4.4.
(b) Each of the Depositor, the Servicer and the Issuer shall
inform the other parties to this Agreement promptly, in writing, upon the
discovery by it of any breach of any Ford Credit Receivables Representation
with respect to any Ford Credit Receivable or any Huntington Receivables
Representation with respect to any Huntington Receivable. Upon its receipt of
notice as described in the previous sentence, the Indenture Trustee shall
notify (or shall cause notice to be delivered to) Ford Credit or Huntington,
as the case may be, of its breach of any Ford Credit Receivables
Representation or Huntington Receivables Representation, as the case may be.
Unless the breach shall have been cured within the cure period specified in
the Ford Purchase Agreement, the Huntington Purchase and Servicing Agreement
or the Huntington Representations and Warranties Agreement, as applicable, the
Indenture Trustee shall enforce the obligation of Ford Credit or Huntington,
as the case may be, to repurchase any Ford Credit Receivable or Huntington
Receivable, as the case may be, the interest of the Issuer in which is
materially and adversely affected by the breach, as of the date such
repurchase is required under the applicable Originator Agreement. Any such
breach shall not be deemed to have a material and adverse effect on the
interests of the Issuer if such breach does not affect the ability of the
Issuer to receive and retain timely payment in full on the related Receivable.
The Depositor shall cause the Purchase Amount (less any Liquidation Proceeds
deposited, or to be deposited, in the Collection Account with respect to such
Receivable pursuant to Section 3.3) from such purchase to be remitted in the
manner specified in Section 4.4.
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(c) The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of any of the representations and warranties referred to in Sections
2.3(a) and (b) shall be the repurchase of the related Receivables pursuant to
Section 2.3(a) or (b), as applicable.
(d) Neither the Owner Trustee nor the Indenture Trustee
shall have any duty to conduct an affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable
pursuant to this Section 2.3 or the eligibility of any Receivable for purposes
of this Agreement.
(e) With respect to all Receivables purchased pursuant to
this Section 2.3, the Issuer shall assign to the Depositor or the applicable
Originator, as the case may be, without recourse, representation or warranty,
all of the Issuer's right, title and interest in and to such Receivables and
all security and documents relating thereto.
SECTION 2.4 Custody of Receivable Files. The Issuer hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to
act as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered
to the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture,
with respect to each Receivable:
(i) the original executed Receivable or, if no such
original exists, a copy thereof;
(ii) the original credit application fully executed
by the Obligor or a photocopy thereof or a record thereof on
a computer file, diskette or on microfiche;
(iii) the original certificate of title or such
documents that the related Receivables Servicer keeps on
file, in accordance with its customary procedures,
evidencing the security interest of the related Originator
in the related Financed Vehicle; and
(iv) any and all other documents (including any
computer file, diskette or microfiche) that the Servicer or
the related Receivables Servicer shall keep on file, in
accordance with its or the related Receivables Servicer's
customary procedures, relating to a Receivable.
The Servicer shall be permitted to appoint the applicable Receivables
Servicer to hold the documents and instruments relating to those Receivables
for the benefit of the Issuer and the Indenture Trustee. The Issuer and the
Indenture Trustee shall have no responsibility to monitor the Servicer's (or
the Receivables Servicers') performance as custodian and shall have no
liability in connection with the Servicer's (or the Receivables Servicers')
performance of such duties hereunder.
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SECTION 2.5 Representations and Warranties as to the Security Interest
of the Issuer in the Receivables. The Depositor makes the following
representations and warranties to the Issuer. The representations and
warranties speak as of the execution and delivery of this Agreement and as of
the Closing Date, and shall survive the sale of the Trust Property to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) This Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Issuer,
which security interest is prior to all other Liens, and is enforceable as
such as against creditors of and purchasers from the Depositor.
(b) The Receivables constitute "tangible chattel paper"
within the meaning of Article 9 of the UCC.
(c) Immediately prior to its transfer to the Issuer, each
Receivable was free and clear of any Lien created by the Depositor.
(d) The Depositor has caused or will have caused, within ten
days, 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 in the Receivables granted to the Issuer
hereunder. Each such financing statement will contain a statement to the
following effect "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Secured
Party."
(e) Other than the security interest granted to the Issuer
pursuant to this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables.
The Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description of
collateral covering the Receivables other than any financing statement
relating to the security interest granted to the Issuer hereunder or that has
been terminated. The Depositor is not aware of any judgment or tax lien
filings against it.
(f) The contracts that constitute or evidence the
Receivables do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Seller or
the Issuer.
Each of the parties hereto agrees that it shall not, without
satisfaction of the Rating Agency Condition, waive any of the representations
and warranties in this Section 2.5.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall (or shall require
the Receivables Servicers to) manage, service, administer and make collections
on the Receivables with reasonable care, using that degree of skill and
attention that the Servicer (or the related Receivables Servicer) exercises
with respect to all comparable new or used automobile and light-duty truck
receivables that it (or the related Receivables Servicer) services for itself
or others. The duties the Servicer shall be responsible to delegate to the
Receivables Servicers collection and posting of all payments, responding to
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inquiries of Obligors on such Receivables, investigating delinquencies,
reporting tax information to Obligors and accounting for collections. The
Servicer shall follow its (or the related Receivables Servicer's) customary
standards, policies and procedures in performing its duties as Servicer.
Without limiting the generality of the foregoing, the Servicer is hereby (and
each Receivables Servicer pursuant to its Receivables Servicing Agreement is
thereby) authorized and empowered to execute and deliver, on behalf of itself
(or the Servicer, in the case of a Receivables Servicer), the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders,
or any of them, any and all instruments of satisfaction or cancellation, or
partial or full release or discharge, and all other comparable instruments,
with respect to such Receivables or to the Financed Vehicles securing such
Receivables. If the Servicer (or the related Receivables Servicer) shall
commence a legal proceeding to enforce a Receivable, the Issuer (in the case
of a Receivable other than a Purchased Receivable) shall thereupon be deemed
to have automatically assigned, solely for the purpose of collection, such
Receivable to the Servicer (or the related Receivables Servicer). If in any
enforcement suit or legal proceeding it shall be held that the Servicer (or
the related Receivables Servicer) may not enforce a Receivable on the ground
that it is not a real party in interest or a holder entitled to enforce the
Receivable, the Issuer shall, at the Servicer's expense and direction (or, to
the extent permitted in the related Receivables Servicing Agreement, the
related Receivables Servicer's expense and direction), take steps to enforce
the Receivable, including bringing suit in its name or the names of the
Indenture Trustee, the Noteholders, the Certificateholders, or any of them.
The Issuer shall furnish the Servicer (or the related Receivables Servicer)
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
SECTION 3.2 Collection of Receivable Payments. The Servicer shall (or
shall require the related Receivables Servicer to) make reasonable efforts to
collect all payments called for under the terms and provisions of the
Receivables as and when the same shall become due and shall follow such
collection procedures as it follows with respect to all comparable new or used
automobile and light-duty truck receivables that it services for itself and
others. To the extent the Indenture Trustee becomes aware of any breach by a
Receivables Servicer, the Indenture Trustee shall enforce (or cause the
enforcement of) the obligations of such Receivables Servicer under the related
Receivables Servicing Agreement in all material respects until such
Receivables Servicing Agreement has been terminated in accordance with its
terms. Notwithstanding anything herein to the contrary, the Servicer and Ford
Credit, as a Receivables Servicer, shall not be required to make any
collection, repossession or liquidation efforts with respect to the Ford
Credit Receivables after March 10, 2010.
SECTION 3.3 Realization Upon Receivables. On behalf of the Issuer, the
Servicer shall (or shall require the related Receivables Servicer to) use
reasonable efforts, consistent with its (or the related Receivables
Servicer's) customary standards, policies and procedures, to repossess or
otherwise convert the ownership of the Financed Vehicle securing any
Receivable as to which the Servicer (or the related Receivables Servicer)
shall have determined to be uncollectible. The Servicer shall (or shall
require the related Receivables Servicer to) follow such customary standards,
policies and procedures as it (or the related Receivables Servicer) shall deem
necessary or advisable in its servicing of comparable receivables, which may
include selling the Financed Vehicle at public or private sale. The Servicer
(or the related Receivables Servicer) shall be entitled to recover from
proceeds all reasonable expenses incurred by it in the course of converting
the Financed Vehicle into cash proceeds. The Liquidation Proceeds (net of such
expenses) realized in connection with any such action with respect to a
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Receivable shall be deposited by the Servicer (or the related Receivables
Servicer) into the Collection Account in the manner specified in Section 4.2
and shall be applied to reduce (or to satisfy, as the case may be) the
Purchase Amount of the Receivable, if such Receivable is to be repurchased by
the Depositor or a Seller pursuant to Section 2.3 or is to be purchased by the
Servicer pursuant to Section 3.6. The foregoing shall be subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer (or the related Receivables Servicer) shall not be
required to expend funds in connection with the repair or the repossession of
such Financed Vehicle unless it shall determine in its discretion that such
repair and/or repossession will increase the Liquidation Proceeds by an amount
greater than the amount of such expenses.
SECTION 3.4 Maintenance of Security Interests in Financed Vehicles.
The Servicer shall (or shall require the related Receivables Servicer to), in
accordance with its (or the related Receivables Servicer's) customary
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Issuer hereby authorizes the Servicer (or a Receivables Servicer) to take
such steps as are necessary to re-perfect such security interest on behalf of
the Issuer and the Indenture Trustee in the event of the relocation of a
Financed Vehicle or for any other reason, in either case, when the Servicer
has knowledge of the need for such re-perfection.
SECTION 3.5 Covenants of Servicer. The Servicer (or a Receivables
Servicer) may grant extensions, rebates, deferrals, amendments, modifications
or adjustments on a Receivable in accordance with its customary practices (or
those of a Receivables Servicer); provided, however, that the Servicer will
purchase such Receivable in the manner provided in Section 3.6 if the Servicer
(or a Receivables Servicer) does any of the following:
(i) releases the Financed Vehicle securing any
Receivable from the security interest granted by such
Receivable in whole or in part except in the event of
payment in full by or on behalf of the Obligor thereunder,
satisfaction of the payment obligation evidenced by such
Receivable, repossession, discounted settlement, abandonment
or by operation of law, in each case in accordance with the
Servicer's (or the applicable Receivables Servicer's)
customary standards, policies and procedures,
(ii) impairs the rights of the Issuer in the
Receivables,
(iii) agrees to reduce the Annual Percentage Rate
or Principal Balance with respect to any Receivable other
than as required by applicable law, or
(iv) takes any other action with respect to a
Receivable which results in a repurchase by a Receivables
Servicer of the Receivable under the applicable Originator
Agreement.
The Servicer (or any Receivables Servicer) may in its discretion waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable. Notwithstanding anything in this Agreement
to the contrary, the Servicer (or any Receivables Servicer) may refinance any
Receivable if the full Principal Balance of such Receivable is deposited into
the Collection Account, and the receivable created by such refinancing shall
not be property of the Issuer.
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SECTION 3.6 Purchase of Receivables Upon Breach. (a) Each of the
Depositor, the Servicer, the Issuer and the Indenture Trustee shall inform the
other parties to this Agreement promptly, in writing, upon the discovery by it
of any breach of Section 3.4 or 3.5 which materially and adversely affects the
interest of the Issuer in any Receivable. Unless the breach shall have been
cured by the last day of the second Collection Period following written notice
to the Indenture Trustee of such breach, the Servicer shall repurchase any
Receivable, the interest of the Issuer in which is materially and adversely
affected by such breach as of such last day (or, at the Servicer's option, the
last day of the first Collection Period following the discovery). The Servicer
shall remit the related Purchase Amount (less any Liquidation Proceeds
deposited, or to be deposited, in the Collection Account with respect to such
Receivable pursuant to Section 3.3), in the manner specified in Section 4.4.
(b) Each of the Depositor, the Servicer and the Issuer shall
inform the other parties to this Agreement promptly, in writing, upon the
discovery by it of any action with respect to a Receivable which results in a
requirement by a Receivables Servicer to repurchase the Receivable. Upon its
receipt of notice as described in the preceding sentence, the Indenture
Trustee shall notify (or shall cause notice to be delivered to) Ford Credit or
Huntington, as the case may be, of such repurchase requirement and, unless the
action requiring the repurchase shall have been cured within the cure period
specified in the applicable Originator Agreement, the Indenture Trustee shall
enforce the obligation of Ford Credit or Huntington, as the case may be, to
repurchase such Receivable. The Servicer shall cause the Purchase Amount (less
any Liquidation Proceeds deposited, or to be deposited, in the Collection
Account with respect to such Receivable pursuant to Section 3.3) from such
purchase to be remitted in the manner specified in Section 4.4.
(c) The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of Section 3.4 or 3.5 shall be the repurchase of the related
Receivables pursuant to Section 3.6(a) or (b), as applicable.
(d) Neither the Owner Trustee nor the Indenture Trustee
shall have any duty to conduct an affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable
pursuant to this Section 3.6.
(e) With respect to all Receivables purchased pursuant to
this Section 3.6, the Issuer shall assign to the Servicer, without recourse,
representation or warranty, all of the Issuer's right, title and interest in
and to such Receivables and all security and documents relating thereto.
SECTION 3.7 Servicer Fees. The Servicer shall be entitled to the Net
Servicing Fee, which shall be payable as provided in Section 8.2 of the
Indenture. The Receivables Servicers shall be entitled to the Receivables
Servicer Servicing Fee, which shall be payable as provided in Section 8.2 of
the Indenture. To the extent that a Receivables Servicer does not retain its
Receivables Servicer Servicing Fee from collections on Receivables serviced by
it, the Servicer will pay any portion of that Receivables Servicer Servicing
Fee that is not so retained directly to that Receivables Servicer.
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SECTION 3.8 Monthly Report. On or prior to the Determination Date for
each Payment Date, the Indenture Trustee shall deliver to the Depositor, the
Owner Trustee, each Note Paying Agent and each Certificate Paying Agent a
report containing all information (including all specific dollar amounts as
calculated by the Indenture Trustee) necessary to make the transfers and
distributions on each Payment Date pursuant to Section 8.2 of the Indenture
for the Collection Period preceding the date of such report (the "Monthly
Report") and the written statements to be furnished by the Owner Trustee to
the Certificateholders pursuant to Section 4.7 hereof and by the Indenture
Trustee to the Noteholders pursuant to Section 4.7 hereof and Section 7.4 of
the Indenture. The Indenture Trustee will be responsible for aggregating and
processing the monthly reports prepared by the Receivables Servicers to the
extent those reports are forwarded to the Indenture Trustee by the Servicer or
the Receivables Servicers; provided, however, that the Indenture Trustee will
not be liable for any incomplete Monthly Report to the extent that the
Indenture Trustee did not receive the information required to complete that
Monthly Report. In the event that the Indenture Trustee has not received the
information required to complete the monthly report with respect to any
payment date, the Indenture Trustee will promptly notify the Servicer. Neither
the Servicer, the Issuer, the Owner Trustee nor the Indenture Trustee shall
have any liability or responsibility for any inaccuracy in any Monthly Report
resulting from any inaccuracy in any information provided by a Receivables
Servicer.
SECTION 3.9 Annual Statement as to Compliance; Notice of Event of
Servicing Termination. (a) The Servicer shall deliver to the Owner Trustee,
the Indenture Trustee and each Rating Agency on or before March 31 of each
year beginning March 31, 2005, an Officer's Certificate, dated as of December
31 of the preceding calendar year, stating that (i) a review of the activities
of the Servicer during the preceding 12-month period (or such shorter period
in the case of the first such certificate) and of its performance under this
Agreement has been made under such officer's supervision and (ii) to the best
of such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such period, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency promptly after having obtained actual knowledge
thereof, but in no event later than five (5) Business Days thereafter, written
notice in an Officer's Certificate of any event which with the giving of
notice or lapse of time, or both, would become an Event of Servicing
Termination under Section 7.1.
SECTION 3.10 Annual Independent Certified Public Accountant's Report.
The Servicer shall cause a firm of independent certified public accountants,
who may also render other services to the Servicer, the Seller, the Depositor
or either Receivables Servicer, to deliver to the Owner Trustee and the
Indenture Trustee on or before March 31 of each year beginning March 31, 2005
with respect to the twelve months ended on the immediately preceding
December 31 (or such shorter period in the case of the first such report) a
report to the effect that such firm has examined the servicing functions of
the Servicer for such period, including the applicable party's procedures
and records
8
relating to such party's servicing of the Receivables under this Agreement and
that, on the basis of such examination, such firm is of the opinion that the
applicable servicing by such party has been conducted during such period in
compliance with this Agreement, except for (a) such exceptions as such firm
believes to be immaterial and (b) such other exceptions as shall be set forth
in such firm's report. In addition, such report shall set forth the procedures
performed in conjunction with the examination.
The report will also indicate that the firm is independent of the
Servicer (or a Receivables Servicer, as applicable) within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants.
In the event such independent certified public accountants require
the Indenture Trustee to agree to the procedures to be performed by such firm
in the report required to be prepared pursuant to this Section 3.10, the
Servicer shall direct the Indenture Trustee in writing to so agree; it being
understood and agreed that the Indenture Trustee will deliver such letter of
agreement in conclusive reliance upon the direction of the Servicer, and the
Indenture Trustee has not made any independent inquiry or investigation as to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
SECTION 3.11 Access to Certain Documentation and Information Regarding
Receivables. In each case subject to the Servicer's rights to access under the
related Receivables Servicing Agreement, the Servicer shall provide to the
Issuer and the Indenture Trustee access to the Receivable Files without
charge, but only upon reasonable request and during the normal business hours
at the offices of the Servicer or the respective offices of the Receivables
Servicers, as applicable. Nothing in this Section 3.11 shall affect the
obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section 3.11.
SECTION 3.12 Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees, expenses (including counsel fees and expenses) and
disbursements of the independent accountants, taxes imposed on the Servicer
and expenses incurred in connection with distributions and reports to
Noteholders and Certificateholders, except that each Receivables Servicer will
be entitled to any Supplemental Servicing Fee.
SECTION 3.13 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. To the extent permitted by
applicable law and the rules of the Securities and Exchange Commission as
interpreted by the staff of the Securities and Exchange Commission, the
Depositor shall furnish in a timely manner for filing under the Securities
Exchange Act of 1934, as amended, the certification required by Section 302 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in respect of the Issuer.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) Prior to the Closing Date there shall have
been established (i) the Ford Credit Deposit Account, pursuant to which Ford
Credit has agreed to deposit collections on the Ford Credit Receivables, as
more specifically described in the Ford Credit Servicing Agreement and (ii) a
Huntington Deposit Account, pursuant to which Huntington shall deposit
9
collections on the Huntington Receivables, as more specifically described in
the Huntington Purchase and Servicing Agreement. Each of the forgoing deposit
accounts were established and shall initially be maintained with the
Depository Institution. On the second Business Day prior to each Payment Date,
the Indenture Trustee shall withdraw from each such deposit account for
deposit into the Collection Account the Available Collections for the related
Collection Period. All monies owned by the Issuer deposited from time to time
in the foregoing deposit accounts shall be held by the Depository Institution
for the benefit of the Noteholders and, after payment in full of the Notes, as
agent of the Issuer and as part of the Trust Property; provided, however, that
all monies owned by the Seller or other third parties deposited from time to
time in the foregoing deposit accounts shall not be so held and shall not be
available for deposit into the Collection Account and shall not be available
to make payments in respect of the Notes or the Certificates.
(b) The Indenture Trustee shall, prior to the Closing Date,
cause to be established and maintained two Eligible Deposit Accounts in the
name "▇▇▇▇▇ Fargo Bank, National Association, as Indenture Trustee and as
secured party for GS Auto Loan Trust 2004-1", initially at the corporate trust
department of the Indenture Trustee, which shall be designated as the
"Collection Account" and the "Principal Distribution Account," respectively.
The Collection Account and the Principal Distribution Account shall be under
the sole dominion and control of the Indenture Trustee. In addition, the
Collection Account and the Principal Distribution Account shall be established
and maintained at an institution which agrees in writing that for so long as
the Notes are outstanding it will comply with entitlement orders (as defined
in Article 8 of the UCC) originated by the Indenture Trustee without further
consent of the Issuer. All monies deposited from time to time in the
Collection Account and the Principal Distribution Account shall be held by the
Indenture Trustee as secured party for the benefit of the Indenture Secured
Parties and, after payment in full of the Notes, as agent of the Issuer and as
part of the Trust Property. All deposits to and withdrawals from the
Collection Account and the Principal Distribution Account shall be made only
upon the terms and conditions of the Basic Documents.
All amounts held in the Collection Account and the Principal
Distribution Account shall, to the extent permitted by applicable
law, rules and regulations, be invested, as directed in writing by
the Servicer, by the depository institution or trust company then
maintaining the Collection Account and the Principal Distribution
Account in specified Permitted Investments that mature not later than
the second Business Day immediately prior to the Payment Date (or if
the Rating Agency Condition is satisfied, not later than such Payment
Date) for the Collection Period to which such amounts relate and such
Permitted Investments shall be held to maturity. The Indenture
Trustee shall not be liable for investment losses in Permitted
Investments made in accordance with directions from the Servicer. In
the event that the Collection Account or the Principal Distribution
Account is no longer to be maintained at the corporate trust
department of the Indenture Trustee, the Indenture Trustee shall
cause an Eligible Deposit Account to be established as the Collection
Account or Principal Distribution Account, as applicable, within ten
(10) Business Days (or such longer period not to exceed thirty (30)
calendar days as to which each Rating Agency may consent).
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(c) [Reserved].
(d) The Indenture Trustee shall, prior to the Closing Date,
cause an Eligible Deposit Account to be established and maintained, in the
name "GS Auto Loan Trust 2004-1 Certificate Distribution Account", initially
at the corporate trust department of the Indenture Trustee, which shall be
designated as the "Certificate Distribution Account". The Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee. All monies deposited from time to time in the Certificate
Distribution Account pursuant to this Agreement and the Indenture shall be
held by the Owner Trustee as part of the Trust Property and shall be applied
as provided in the Basic Documents. In the event that the Certificate
Distribution Account is no longer to be maintained at the corporate trust
department of the Indenture Trustee, the Indenture Trustee shall cause an
Eligible Deposit Account to be established as the Certificate Distribution
Account within ten (10) Business Days (or such longer period not to exceed
thirty (30) calendar days as to which each Rating Agency may consent) and
shall give written notice of the location and account number of such account
to the Owner Trustee.
SECTION 4.2 Collections. Upon the Indenture Trustee becoming aware or
receiving notice of the failure of a Receivables Servicer to remit Collections
in accordance with the terms of the applicable Receivables Servicing
Agreement, the Indenture Trustee shall enforce the obligation of each
Receivables Servicer to remit Collections in accordance with the terms of the
applicable Receivables Servicing Agreement. Unless the Rating Agency Condition
has been satisfied, the Servicer shall not consent to any amendment to a
Receivables Servicing Agreement which would delay the timing for remitting
Collections received by a Receivables Servicer under the related Receivables
Servicing Agreement.
SECTION 4.3 Application of Collections. For the purposes of this
Agreement, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied in accordance
with the customary practices of the related Receivables Servicer or, if such
Receivables Servicer is no longer engaged by the Servicer, the customary
practice of the Servicer.
SECTION 4.4 Additional Deposits. The Depositor and the Servicer shall
deposit (or cause the deposit of) in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables pursuant to Sections 2.3
and 3.6, respectively, and the Servicer shall deposit therein all amounts to
be paid under Section 8.1. All such deposits with respect to a Collection
Period shall be made, in immediately available funds, on the Payment Date
related to such Collection Period. For so long as ▇▇▇▇▇▇▇ Sachs Mortgage
Company is the servicer, on the Business Day before each Payment Date, the
Servicer will deposit into the Collection Account the Receivables Servicer
Supplemental Payment Amount, if any, for that Payment Date.
SECTION 4.5 Distributions. On each Payment Date, the Indenture Trustee
shall (based on the information contained in the Monthly Report delivered on
or before the related Determination Date) make withdrawals from the Collection
Account and make deposits, distributions and payments, to the extent of
Available Funds for such Payment Date, in the manner and order of priority set
forth in Section 8.2 of the Indenture.
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SECTION 4.6 Net Deposits. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company is not the
Servicer, remittances pursuant to Sections 4.2 and 4.4 above may be made net
of the Net Servicing Fee. Nonetheless, the Indenture Trustee shall account for
all of the above described remittances and distributions in the Monthly Report
as if the amounts were deposited and/or transferred separately.
SECTION 4.7 Statements to Noteholders and Certificateholders. On each
Payment Date, the Indenture Trustee shall provide to each Noteholder of record
as of the most recent Record Date (with copies to the Rating Agencies and each
Note Paying Agent) and shall provide a hard copy of the Monthly Report to the
Owner Trustee for distribution to each Certificateholder pursuant to Section
5.05 of the Trust Agreement, setting forth for the Collection Period relating
to such Payment Date the following information as to the Notes and the
Certificates to the extent applicable:
(i) the amount of such distribution allocable to
principal allocable to the Notes and to the Certificates;
(ii) the amount of such distribution allocable to
interest allocable to the Notes and the Certificates;
(iii) the Pool Balance and the Pool Factor as of
the close of business on the last day of the preceding
Collection Period;
(iv) the amount of the Net Servicing Fee paid to
the Servicer with respect to the related Collection Period
and the amount of any unpaid Net Servicing Fees and the
change in such amount from that of the prior Payment Date;
(v) the Receivables Servicer Supplement Payment
Amount, if any, for the Payment Date;
(vi) the aggregate outstanding principal amount of
each Class of Notes and the Note Factor for each Class of
Notes;
(vii) the amount of any previously due and unpaid
payment of principal or interest of each Class of Notes, and
the change in such amount from that of the prior Payment
Date;
(viii) the Three-Month Annualized Net Loss Ratio;
(ix) the aggregate Purchase Amount of Receivables
repurchased pursuant to Section 2.3 or purchased pursuant to
Section 3.6, if any, with respect to the related Collection
Period; and
(x) the aggregate amount of Receivables which
became Liquidated Receivables during the related Collection
Period.
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Each amount set forth on the Payment Date statement pursuant to
clauses (i) and (ii) above shall be expressed as a dollar amount per $1,000 of
original principal amount of a Note or original Certificate Balance of a
Certificate, as applicable.
The Indenture Trustee will make the Monthly Report available to each
Noteholder via the Indenture Trustee's internet website, and, with the consent
or at the direction of the Issuer, such other information regarding the notes
and/or receivables as the Indenture Trustee may have in its possession, but
only with the use of a password provided by the Indenture Trustee.
The Indenture Trustee's internet website will be initially located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇" or at such other address as will be specified by the
Indenture Trustee from time to time in writing to the Noteholders and the
Owner Trustee. In connection with providing access to the Indenture Trustee's
internet website, the Indenture Trustee may require registration and the
acceptance of a disclaimer. The Indenture Trustee will not be liable for the
dissemination of information in accordance with the foregoing.
SECTION 4.8 Subcertifications of Indenture Trustee in Connection with
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications. No later than ten (10) Business Days prior to
the date on which any Annual Report on Form 10-K with respect to the Issuer is
required to be filed, the Indenture Trustee shall deliver to the Depositor an
officer's certificate in the form set forth in Schedule I. The Indenture
Trustee shall prepare or cause to be prepared for filing with the Securities
and Exchange Commission (other than the initial Current Report on Form 8-K to
be filed by the Depositor in connection with the issuance of the Securities)
and the Depositor and the Servicer, or either of them, shall sign and certify
any and all reports, statements and information respecting the Issuer and/or
the Notes required to be filed, pursuant to the Securities Exchange Act of
1934, as amended, and the rules thereunder ("1934 Act Documents"). Upon
execution and certification of the 1934 Act Documents by the Depositor or the
Servicer, as applicable, the Indenture Trustee shall file such documents with
the Securities and Exchange Commission. Unless otherwise advised by the
Depositor, the Indenture Trustee shall assume that all 1934 Act Documents
shall consist of only the following: Form 8-K reports attaching the related
Monthly Report to be filed each month beginning in March 2004 through January
2005, a Form 15D to be filed in January 2005 (provided, however, that if the
criteria for filing a Form 15D is not met, the Indenture Trustee shall
continue filing the monthly and annual forms), and a Form 10-K to be filed in
March 2005. The Indenture Trustee shall promptly file, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests
with, or other appropriate exemptive relief from the Securities and Exchange
Commission seeking the usual and customary exemption from such reporting
requirements granted to issuers of securities similar to the Notes if and to
the extent the Depositor shall deem any such relief to be necessary or
appropriate. Unless otherwise advised by the Depositor, the Indenture Trustee
shall assume that the Depositor is in compliance with the preceding sentence.
In no event shall the Indenture Trustee have any liability for the execution
or content of any 1934 Act Documents.
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ARTICLE V
THE DEPOSITOR
SECTION 5.1 Representations, Warranties and Covenants of Depositor.
The Depositor makes the following representations and warranties on which the
Issuer is deemed to have relied in acquiring the Trust Property. The
representations and warranties speak as of the Closing Date and shall survive
the conveyance of the Trust Property by the Depositor to the Issuer and the
pledge thereof by the Issuer to the Indenture Trustee pursuant to the
Indenture:
(i) Organization and Good Standing. The Depositor
is duly organized and validly existing as a corporation in
good standing under the laws of the State of Delaware, with
the corporate power and authority to own its properties and
to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) Power and Authority. The Depositor has the
corporate power and authority to execute and deliver this
Agreement and the other Basic Documents to which it is a
party and to carry out their respective terms; the Depositor
has full power and authority to sell and assign the property
to be sold, and assigned to and deposited with the Issuer,
and the Depositor shall have duly authorized such sale and
assignment to and deposit with the Issuer by all necessary
corporate action; and the execution, delivery, and
performance of this Agreement and the other Basic Documents
to which the Depositor is a party have been duly authorized,
executed and delivered by the Depositor by all necessary
corporate action.
(iii) Binding Obligations. This Agreement, when
duly executed and delivered by the other parties hereto,
constitutes a legal, valid, and binding obligation of the
Depositor enforceable against the Depositor in accordance
with its terms, except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, or other
similar laws now or hereafter in effect relating to or
affecting creditors' rights in general and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
Basic Documents to which the Depositor is a party and the
fulfillment of the terms hereof and thereof do not (i)
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or conflict with
or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a
default under, any indenture, agreement, or other instrument
to which the Depositor is a party or by which it is bound,
(ii) result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement, or other instrument, other than the
Liens created by this Agreement or any other Basic Document,
or (iii) violate any law or, to the best of the Depositor's
knowledge, any order, rule, or regulation applicable to the
Depositor of any court or of any federal or state regulatory
body, administrative agency, or other governmental
instrumentality having jurisdiction over the Depositor.
14
(v) No Proceedings. There are no legal or
governmental proceedings pending, or, to the best of the
Depositor's knowledge, threatened, before any court,
regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the
Depositor or its properties (i) asserting the invalidity of
this Agreement, any of the other Basic Documents, (ii)
seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this
Agreement or the other Basic Documents, (iii) seeking any
determination or ruling that would reasonably be expected to
materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Basic
Documents or the Securities or (iv) relating to the
Depositor and which would reasonably be expected to
adversely affect the federal income tax attributes of the
Securities.
SECTION 5.2 Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement (which shall not
include distributions on account of the Notes or the Certificates).
SECTION 5.3 Merger or Consolidation of, or Assumption of the
Obligations of Depositor. Any Person (i) into which the Depositor may be
merged or consolidated, (ii) resulting from any merger, conversion, or
consolidation to which the Depositor shall be a party, or (iii) succeeding to
the business of the Depositor, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the
Depositor under this Agreement, will be the successor to the Depositor under
this Agreement without the execution or filing of any document or any further
act on the part of any of the parties to this Agreement. The Depositor shall
provide notice of any merger, conversion, consolidation, or succession
pursuant to this Section 5.3 to the Rating Agencies, the Owner Trustee and the
Indenture Trustee.
SECTION 5.4 Limitation on Liability of Depositor and Others. The
Depositor and any director, officer, employee or agent of the Depositor may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor shall not be under any obligation to
appear in, prosecute, or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve
it in any expense or liability.
SECTION 5.5 Depositor May Own Notes or Certificates. The Depositor,
and any Affiliate of the Depositor, may in its individual or any other
capacity become the owner or pledgee of Notes or Certificates with the same
rights as it would have if it were not the Depositor or an Affiliate thereof,
except as otherwise expressly provided herein or in the other Basic Documents.
15
SECTION 5.6 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications.
(a) The Depositor or Servicer shall provide on a timely
basis for filing with the 1934 Act Documents, the certification required by
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act to be included in those reports. The
Depositor and the Servicer, or either of them, is authorized to file such
certification or any other 1934 Act Document on behalf of the Issuer.
(b) To the extent any reports or documents are required to
be filed or any other certification is required to be made with respect to the
Issuer, the Notes or the Certificates pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the
Depositor or the Servicer shall prepare and execute any such report, document
or certification and the Depositor and the Servicer, or either of them, is
authorized to file such report, document or certification on behalf of the
Issuer.
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Trust Property. The representations speak as of the Closing Date
of this Agreement and shall survive the conveyance of the Trust Property to
the Issuer and the pledge thereof by the Issuer pursuant to the Indenture:
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a limited partnership in good standing under
the laws of the State of New York, with the limited partnership power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(b) Power and Authority. The Servicer has the limited
partnership power and authority to execute and deliver this Agreement and the
other Basic Documents to which it is a party and to carry out their respective
terms; and the execution, delivery, and performance of this Agreement and the
other Basic Documents to which it is a party have been duly authorized,
executed and delivered by the Servicer by all necessary limited partnership
action.
(c) Binding Obligations. This Agreement, when duly executed
by the other parties hereto, constitutes a legal, valid, and binding
obligation of the Servicer enforceable against the Servicer in accordance with
its terms, except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in effect
relating to or affecting creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Servicer is a party and the fulfillment of the terms hereof and thereof do not
(i) conflict with, result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a default under, the
limited partnership agreement of the Servicer, or conflict with or breach any
of the material terms or provisions of, or constitute (with or without notice
or lapse of time) a default under, any indenture, agreement, or other
instrument to which the Servicer is a party or by which it is bound, (ii)
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, or other instrument,
other than Liens created by this Agreement or any other Basic Document or
(iii) violate any law or, to the best of the Servicer's knowledge, any order,
rule, or regulation applicable to the Servicer of any court or of any federal
or state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer.
16
(e) No Proceedings. There are no legal or governmental
proceedings pending, or to the best of the Servicer's knowledge, threatened,
before any court, regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Servicer or its
properties (i) asserting the invalidity of this Agreement, any of the other
Basic Documents, (ii) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or the
other Basic Documents, (iii) seeking any determination or ruling that would
reasonably be expected to materially and adversely affect the performance by
the Servicer of its obligations under, or the validity or enforceability of,
this Agreement, any of the other Basic Documents or the Securities, or (iv)
relating to the Servicer and which would reasonably be expected to adversely
affect the federal income tax attributes of the Securities.
SECTION 6.2 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Depositor from and against any and all costs,
expenses, losses, damages, claims and liabilities, arising out of or resulting
from the use, ownership or operation by the Servicer or any Affiliate thereof
of a Financed Vehicle.
(b) Indemnification under this Section 6.2 by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company (or any successor thereto pursuant to Section 7.2) as
Servicer, with respect to the period such Person was the Servicer, shall
survive the termination of such Person as Servicer or a resignation by such
Person as Servicer as well as the termination of this Agreement or the
resignation or removal of the Owner Trustee or the Indenture Trustee and shall
include reasonable fees and expenses of counsel and expenses of litigation. If
the Servicer shall have made any indemnity payments pursuant to this Section
6.2 and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly
repay such amounts to the Servicer, without interest.
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion, or consolidation
to which the Servicer shall be a party, (iii) succeeding to the business of
the Servicer or (iv) 50% or more of the equity of which is owned, directly or
indirectly, by ▇▇▇▇▇▇▇, Sachs & Co., which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Servicer under this Agreement, will be the successor to the Servicer under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties to this Agreement. The Servicer shall
provide notice of any merger, conversion, consolidation or succession pursuant
to this Section 6.3 to the Rating Agencies and the Indenture Trustee.
17
SECTION 6.4 Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor the general partner or any limited partner under the
Servicer's limited partnership agreement or any of the directors or officers
or employees or agents of the Servicer, the general partner or any limited
partner under the Servicer's limited partnership agreement shall be under any
liability to the Issuer, the Indenture Trustee, the Owner Trustee, the
Noteholders or the Certificateholders, except as expressly provided under this
Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such Person
against any liability that would otherwise be imposed by reason of willful
misfeasance or bad faith in the performance of duties or by reason of reckless
disregard of its obligations and duties under this Agreement, or by reason of
gross negligence in the performance of its duties under this Agreement (except
for errors in judgment). The Servicer and any director, officer or employee or
agent of the Servicer may rely in good faith on any Opinion of Counsel or on
any Officer's Certificate of the Depositor or certificate of auditors believed
to be genuine and to have been signed by the proper party in respect of any
matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall
not be under any obligation to appear in, prosecute, or defend any legal
action that shall not be incidental to its duties to service the Receivables
in accordance with this Agreement, and that in its opinion may cause it to
incur any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement, the rights and duties of the parties to this
Agreement and the interests of the Noteholders and Certificateholders under
this Agreement. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Issuer, and the Servicer shall be entitled to be reimbursed therefor. Any
amounts due the Servicer pursuant to this subsection shall be payable on a
Payment Date from the Available Funds on deposit in the Collection Account
only after all payments required to be made on such date to the Noteholders,
the Certificateholders, the Owner Trustee, the Indenture Trustee and the
Servicer have been made.
(c) The Servicer, the general partner and each limited
partner under the Servicer's limited partnership agreement and any director or
officer or employee or agent of the Servicer, the general partner and each
limited partner under the Servicer's limited partnership agreement shall be
indemnified by the Issuer and held harmless against any loss, liability, or
expense including reasonable attorneys' fees and expenses incurred in
connection with any legal action relating to the performance of the Servicer's
duties under this Agreement, other than (i) any loss or liability otherwise
reimbursable pursuant to this Agreement; (ii) any loss, liability, or expense
incurred solely by reason of the Servicer's willful misfeasance, negligence,
or bad faith in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties under this Agreement; and
(iii) any loss, liability, or expense for which the Issuer is to be
indemnified by the Servicer under this Agreement. Any amounts due the Servicer
pursuant to this subsection shall be payable on a Payment Date from the
Available Funds on deposit in the Collection Account only after all payments
required to be made on such date to the Noteholders, the Certificateholders,
the Owner Trustee and the Indenture Trustee have been made.
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SECTION 6.5 Subservicing and Delegation of Duties. The Servicer may,
at any time without notice or consent, delegate (a) any or all of its duties
(including, without limitation, its duties as custodian) under the Basic
Documents to any of its Affiliates or (b) specific duties to sub-contractors
who are in the business of performing such duties; provided that no such
delegation shall relieve the Servicer of its responsibility with respect to
such duties and the Servicer shall remain obligated and liable to the Issuer
and the Indenture Trustee for its duties hereunder as if the Servicer alone
were performing such duties.
Without limiting the generality of the preceding paragraph, each of
the Receivables Servicers will be subservicers pursuant to the terms and
conditions of the applicable Receivables Servicing Agreement. The Issuer and
the Servicer shall permit Ford Credit to repurchase Ford Credit Receivables
that are Liquidated Receivables under the Ford Credit Servicing Agreement on
the date such Ford Credit Receivables became Liquidated Receivables in return
for a deferred repurchase amount equal to Liquidation Proceeds for such Ford
Credit Receivables.
SECTION 6.6 Servicer Not to Resign as Servicer; Resignation and
Termination of Receivables Servicers. (a) Subject to the provisions of Section
6.3, the Servicer shall not resign from its obligations and duties under this
Agreement except upon the mutual consent of the Servicer, the Indenture
Trustee and the Owner Trustee or upon the determination that the performance
of its duties under this Agreement shall no longer be permissible under
applicable law. Notice of any such determination permitting the resignation of
the Servicer shall be communicated to the Owner Trustee and the Indenture
Trustee at the earliest practicable time (and, if such communication is not in
writing, shall be confirmed in writing at the earliest practicable time) and
any such determination shall be evidenced by an Opinion of Counsel to such
effect delivered to the Owner Trustee and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a Successor Servicer shall have (i) taken the
actions required by Section 7.1(b) and (ii) assumed the responsibilities and
obligations of the Servicer in accordance with Section 7.2.
(b) The Receivables Servicing Agreement with any Receivables
Servicer may be terminated upon the terms and conditions set forth in such
agreement.
SECTION 6.7 Servicer May Own Notes or Certificates. The Servicer, and
any Affiliate of the Servicer, may, in its individual or any other capacity,
become the owner or pledgee of Notes or Certificates with the same rights as
it would have if it were not the Servicer or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents. Except as
set forth herein or in the other Basic Documents, Notes and Certificates so
owned by or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Notes and
Certificates.
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination. (a) If any one of the
following events ("Events of Servicing Termination") shall occur and be
continuing:
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(i) Any failure by the Servicer to deliver to the
Indenture Trustee any payment required to be so delivered by
the Servicer under the terms of this Agreement that shall
continue unremedied for a period of ten (10) Business Days
after written notice of such failure is received by the
Servicer from the Owner Trustee or the Indenture Trustee; or
(ii) Failure on the part of the Servicer duly to
observe or to perform in any material respect any other
covenants or agreements, as the case may be, set forth in
this Agreement, which failure shall (A) materially and
adversely affect the rights of Noteholders or
Certificateholders and (B) continue unremedied for a period
of ninety (90) days after the date on which written notice
of such failure, requiring the same to be remedied, shall
have been given (1) to the Servicer by the Owner Trustee or
the Indenture Trustee or (2) to the Owner Trustee, the
Indenture Trustee and the Servicer by the Noteholders of
Notes evidencing not less than a majority of the principal
amount of the Outstanding Notes or, if no Notes are
Outstanding, by holders of Certificates evidencing
Percentage Interests aggregating at least a majority; or
(iii) So long as a depository institution is not
the Servicer, the entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, or
liquidator for the Servicer or, if ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company is the Servicer, ▇▇▇▇▇▇▇ Sachs Real Estate Funding
Corp. (or its successor in interest) in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
or similar proceedings, or for the winding up or liquidation
of its respective affairs, and the continuance of any such
decree or order unstayed and in effect for a period of
ninety (90) consecutive days; or
(iv) So long as a depository institution is not the
Servicer, the consent by the Servicer or, if ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company is the Servicer, ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp. (or its successor in interest) to the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities, or similar proceedings of or relating to
the Servicer (or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp. (or
its successor in interest), as applicable) of or relating to
substantially all of its property; or the Servicer or, if
▇▇▇▇▇▇▇ Sachs Mortgage Company is the Servicer, ▇▇▇▇▇▇▇
Sachs Real Estate Funding Corp. (or its successor in
interest) shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations
or become insolvent;
then the Indenture Trustee shall promptly notify each Rating
Agency, and in each and every case, so long as an Event of Servicing
Termination shall not have been remedied, either the Indenture
Trustee or the holders of Notes evidencing not less than a majority
of the principal amount of the Notes Outstanding (or, if no Notes are
Outstanding, Certificates evidencing Percentage Interests aggregating
at least a majority), by notice then given in writing to the Servicer
(and to the Indenture Trustee and the Owner Trustee if given by the
Noteholders and to the Owner Trustee if given by the
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Certificateholders and in each case with a copy to the Rating
Agencies) may terminate all of the rights and obligations of the
Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Notes, the
Certificates or the Trust Property or otherwise, shall pass to and be
vested in the Indenture Trustee or such Successor Servicer as may be
appointed under Section 7.2; and, without limitation, the Indenture
Trustee and the Owner Trustee are hereby authorized and empowered to
execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise. Notwithstanding the
foregoing, a delay or failure of performance referred to under
clauses (i) and (ii) above for a period of 150 days will not
constitute an Event of Servicing Termination if such delay or failure
was caused by force majeure or other similar occurrence.
(b) Upon termination of the Servicer under Section 7.1(a),
the predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer for
administration of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable and the delivery of the Receivable Files and the related
accounts and records to the extent maintained by the Servicer. All reasonable
costs and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the Successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to this Section 7.1
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses.
(c) Upon termination of the Servicer under Section 7.1(a),
the Successor Servicer shall service the Ford Credit Receivables and the
Huntington Receivables through their respective Receivables Servicing
Agreements, unless the applicable Receivables Servicing Agreement has been
terminated pursuant to the terms and conditions set forth therein.
SECTION 7.2 Appointment of Successor Servicer. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 7.1 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation,
until the later of (x) the date 45 days from the delivery to the Indenture
Trustee and the Owner Trustee of written notice of such resignation (or
written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's resignation or
termination hereunder, the Indenture Trustee shall appoint a Successor
21
Servicer, and the Successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Owner Trustee and the Indenture Trustee
(with a copy to each Rating Agency). In the event that a Successor Servicer
has not been appointed at the time when the predecessor Servicer has ceased to
act as Servicer in accordance with this Section 7.2, the Indenture Trustee
without further action shall automatically be appointed the Successor
Servicer. The Indenture Trustee may resign as the Servicer by giving written
notice of such resignation to the Issuer and in such event shall be released
from such duties and obligations, such release not to be effective until the
date a Successor Servicer enters into a written assumption as provided in this
Section. Upon delivery of any such notice to the Issuer, the Issuer shall
obtain a new servicer as the Successor Servicer in accordance with this
Section. Notwithstanding the above, if the Indenture Trustee shall be legally
unable so to act or if, within 30 days after the delivery of its notice of
resignation, the Issuer shall not have obtained a Successor Servicer, the
Indenture Trustee shall appoint, or petition a court of competent jurisdiction
to appoint, any established institution, having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing of
automotive receivables, as the successor to the Servicer under this Agreement;
provided that the Rating Agency Condition shall be satisfied in connection
with such appointment.
(b) Upon appointment, the Successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, by the terms and provisions of
this Agreement; provided, that (i) any failure of such Successor Servicer to
perform such responsibilities or duties that are caused by the predecessor
Servicer's failure to provide information or monies required hereunder shall
not be considered a default by such Successor Servicer and (ii) such Successor
Servicer shall have no liability for actions, inactions or representations of
the predecessor Servicer.
(c) In connection with such appointment, the Indenture
Trustee may make such arrangements for the compensation of such Successor
Servicer out of payments on Receivables as it and such Successor Servicer
shall agree; provided, however, that no such compensation shall be in excess
of that permitted the predecessor Servicer under this Agreement. The Indenture
Trustee and such Successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
(d) Notwithstanding anything herein or in the other Basic
Documents to the contrary, in no event shall any Successor Servicer be
required to purchase any Receivable pursuant to Section 3.6 herein.
SECTION 7.3 Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VII, the Indenture Trustee shall give prompt written notice
thereof to Noteholders, and the Owner Trustee shall give prompt written notice
thereof to Certificateholders at their respective addresses of record and to
each Rating Agency.
SECTION 7.4 Waiver of Past Events of Servicing Termination. The
holders of Notes evidencing not less than a majority of the principal amount
of the Controlling Class (or, if no Notes are outstanding, holders of
Certificates evidencing a majority of the Percentage Interests) may, on behalf
of all Noteholders and Certificateholders, waive any Event of Servicing
Termination hereunder and its consequences, except an event resulting from the
failure by the Servicer to make any required payments in accordance with this
Agreement, which shall require the unanimous vote of all Holders of
Outstanding Securities. Upon any such waiver of a past Event of Servicing
Termination, such Event of Servicing Termination shall cease to exist, and
22
shall be deemed to have been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other Event of Servicing
Termination or impair any right consequent thereon. The Indenture Trustee
shall provide written notice of any such waiver to the Rating Agencies.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables. The Servicer, or if
the Servicer does not exercise such right, a Certificateholder evidencing 100%
of the Percentage Interests in the Certificates may purchase the outstanding
Receivables and the other Trust Property on any Payment Date if, as of the
last day of the related Collection Period, the Pool Balance has declined to
10% or less of the Pool Balance as of the Cut-Off Date. To exercise such
option, the Servicer or Certificateholder, as applicable, shall deposit the
Optional Purchase Price to the Collection Account on such Payment Date. The
Servicer or Certificateholder, as applicable, shall furnish notice of such
election to the Indenture Trustee and the Owner Trustee not later than twenty
(20) days prior to the Prepayment Date. Promptly following its receipt of such
notice, (i) the Indenture Trustee will promptly (but not later than 3 Business
Days after it has received such notice) provide notice of such purchase to the
Noteholders of record and (ii) the Owner Trustee will promptly (but not later
than 3 Business Days after it has received such notice) provide notice of such
purchase to the Certificateholders of record.
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture.
Following the satisfaction and discharge of the Indenture, the payment in full
of the principal of and interest on the Notes, to the extent permitted by
applicable law and the Indenture Trustee will continue to carry out its
obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Collection Account in accordance with
Section 4.5.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1Amendment. (a) Any term or provision of this Agreement may
be amended by the Depositor and the Servicer without the consent of the
Indenture Trustee, the Owner Trustee, any Noteholder, any Certificateholder,
the Issuer or any other Person; provided that such amendment shall not, as
evidenced by an Opinion of Counsel delivered to the Indenture Trustee and to
that effect, materially and adversely affect the interests of the Noteholders
or the Certificateholders. An amendment shall be deemed not to materially and
adversely affect the interests of the Noteholders or the Certificateholders
and no Opinion of Counsel to that effect shall be required if the Rating
Agency Condition is satisfied with respect to such amendment.
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(b) Any term or provision of this Agreement may be amended
by the Depositor and the Servicer but without the consent of the Indenture
Trustee, the Owner Trustee, any Noteholder, any Certificateholder, the Issuer
or any other Person to add, modify or eliminate any provisions as may be
necessary or advisable in order to enable the Depositor, the Servicer or any
of their Affiliates to comply with or obtain more favorable treatment under
any law or regulation or any accounting rule or principle, it being a
condition to any such amendment that the Rating Agency Condition shall have
been satisfied.
(c) Any term or provision of this Agreement may also be
amended from time to time by the Depositor and the Servicer, with the consent
of the Indenture Trustee to the extent that its rights or obligations are
materially and adversely affected thereby (which consent shall not be
unreasonably withheld) and with the consent of (i) the Noteholders of Notes
evidencing not less than a majority of the principal amount of each Class of
Notes, and (ii) the Certificateholders of Certificates evidencing not less
than a majority of the Percentage Interests (which consent of any holder of a
Note or holder of a Certificate given pursuant to this Section 9.1 or pursuant
to any other provision of this Agreement shall be conclusive and binding on
such Note or Certificate, as the case may be, and on all future holders of
such Note or holders of such Certificate, as the case may be, and of any Note
or Certificate, as applicable, issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made
upon such Note or the Certificate), for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (A)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments on
Receivables or distributions that shall be required to be made on any Note or
Certificate or change any Note Interest Rate, without the consent of all
Noteholders or Certificateholders or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders
of all Notes affected thereby and holders of all Certificates affected
thereby. It shall not be necessary for the consent of Noteholders or the
Certificateholders pursuant to this Section 9.1 to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Noteholders and Certificateholders
provided for in this Agreement) and of evidencing the authorization of the
execution thereof by Noteholders and Certificateholders shall be subject to
such reasonable requirements as the Owner Trustee and the Indenture Trustee
may prescribe, including, with respect to the Noteholders, the establishment
of record dates pursuant to the Note Depository Agreement.
(d) Prior to the execution of any such amendment the
Indenture Trustee will provide written notification of the substance of such
amendment to each Rating Agency.
(e) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such
amendment to the Owner Trustee and each Rating Agency. The Issuer shall
provide notification of the substance of the amendment to each
Certificateholder, and the Indenture Trustee will provide notification of the
substance of such amendment to each Noteholder.
24
(f) Prior to the execution of any amendment to this
Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and, if applicable, the
Opinion of Counsel referred to in Section 9.1(a). The Owner Trustee or the
Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Owner Trustee's or Indenture Trustee's own
rights, duties or immunities under this Agreement or otherwise.
SECTION 9.2 Protection of Title to Trust Property. (a) The Depositor
shall file such financing statements and the Indenture Trustee and the Issuer
shall file such continuation statements, all in such manner and in such places
as may be required by law fully to preserve, maintain, and protect the
interest of the Issuer and the Indenture Trustee for the benefit of the
Indenture Secured Parties in the Receivables and in the proceeds thereof. The
Depositor or Issuer, as applicable, shall deliver (or cause to be delivered)
to the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
The Depositor hereby authorizes the Issuer, the Indenture Trustee and the
Owner Trustee to file continuation statements on its behalf.
(b) Neither the Depositor or the Servicer shall change its
name, identity, or corporate structure in any manner that would, could, or
might make any financing statement or continuation statement filed by the
Indenture Trustee, the Issuer or the Owner Trustee in accordance with
paragraph (a) above seriously misleading within the meaning of Sections 9-506,
9-507 or 9-508 of the UCC, unless it shall have given the Issuer, the Owner
Trustee and the Indenture Trustee at least 5 days' prior written notice
thereof and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Depositor and the Servicer shall give the Issuer,
the Owner Trustee and the Indenture Trustee at least ten (10) days' prior
written notice of any relocation of its principal executive office or change
in the jurisdiction under whose laws it is formed if, as a result of such
relocation or change, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment or new financing statement. The Servicer shall at all times maintain
each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain (or shall cause the
Receivables Servicers to maintain) accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know
at any time the status of such Receivable, including payments and recoveries
made and payments owing (and the nature of each) and (ii) reconciliation
between payments or recoveries on (or with respect to) each Receivable and the
amounts from time to time deposited in the Collection Account in respect of
such Receivable.
(e) The Servicer shall maintain its (or cause the
Receivables Servicers to maintain their) computer systems so that, from and
after the time of conveyance under this Agreement of the Receivables to the
Issuer, the Servicer's (or Receivables Servicers') master computer records
(including any back-up archives) that refer to a Receivable shall indicate
clearly, by numerical code or otherwise, that such Receivable is owned by the
Issuer and has been pledged to the Indenture Trustee. Indication of the
Issuer's and the Indenture Trustee's interest in a Receivable shall not be
deleted from or modified on the Servicer's computer systems until, and only
until, the Receivable shall have been paid in full or repurchased.
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(f) If at any time the Servicer shall propose to sell, grant
a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee, the
Servicer shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been conveyed to
and is owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice,
shall permit the Indenture Trustee and its agents at any time during normal
business hours at the Indenture Trustee's expense (which reasonable expense
shall be reimbursed by the Issuer pursuant to Section 8.2(c) of the Indenture)
to inspect, audit, and make copies of and to obtain abstracts from the
Servicer's records regarding any Receivable.
SECTION 9.3 Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THAT WOULD APPLY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK,
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any
documents executed and delivered in connection herewith, or
for recognition and enforcement of any judgment in respect
thereof, to the nonexclusive general jurisdiction of the
courts of the State of New York, the courts of the United
States of America for the Southern District of New York and
appellate courts from any thereof;
(ii) consents that any such action or proceeding
may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to
such Person at its address determined in accordance with
Section 9.4; and
26
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any
other jurisdiction.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY.
SECTION 9.4 Notices. All demands, notices, and communications under
this Agreement shall be in writing, personally delivered, sent by fax,
overnight courier or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Servicer, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; (b) in the case of the Depositor, at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇; (c) in the case of the Owner Trustee, at the Corporate Trust
Office of the Owner Trustee; (d) in the case of the Indenture Trustee, at the
Corporate Trust Office of the Indenture Trustee; (e) in the case of Moody's,
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
ABS Monitoring Group; (f) in the case of Standard & Poor's, at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Asset Backed Surveillance Group; or (g) at such other address as shall be
designated by any of the foregoing in a written notice to the other parties
hereto. Any notice required or permitted to be mailed to a Noteholder or
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Person as shown in the Note Register or the Certificate
Register, as applicable. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Noteholder or Certificateholder shall receive such notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Notes,
the Certificates or the rights of the holders thereof.
SECTION 9.6 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
therein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 9.7 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Indenture Trustee,
the Owner Trustee and their respective successors and permitted assigns and
each of the Indenture Trustee, Owner Trustee may enforce the provisions hereof
as if they were parties thereto. Except as otherwise provided in this Article
IX, no other Person will have any right or obligation hereunder. The parties
hereto hereby acknowledge and consent to the pledge of this Agreement by the
Issuer to the Indenture Trustee for the benefit of the Indenture Secured
Parties pursuant to the Indenture.
27
SECTION 9.8 Limitation of Liability of the Owner Trustee and the
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, this Agreement has been signed by Wilmington Trust Company not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall Wilmington Trust Company, in its individual
capacity or, except as expressly provided in the Trust Agreement, as Owner
Trustee of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or obligations
hereunder or 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 Articles VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by ▇▇▇▇▇ Fargo, not in its individual capacity but
solely as Indenture Trustee, and in no event shall ▇▇▇▇▇ Fargo have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
SECTION 9.9 Transfers Intended as Sale; Security Interest. (a) Each
of the parties hereto expressly intends and agrees that the transfer of the
Transferred Assets contemplated and effected under this Agreement is a
complete and absolute sale and transfer of the Transferred Assets rather than
a pledge or assignment of only a security interest and shall be given effect
as such for all purposes. It is further the intention of the parties hereto
that the Receivables and other Transferred Assets shall not be part of the
Depositor's estate in the event of a bankruptcy or insolvency of the
Depositor. The sale and transfer by the Depositor of Receivables and other
Transferred Assets hereunder is and shall be without recourse to, or
representation or warranty (express or implied) by, the Depositor, except as
otherwise specifically provided herein. The limited rights of recourse
specified herein against the Depositor are intended to provide a remedy for
breach of representations and warranties relating to the condition of the
property sold, rather than to the collectibility of the Receivables.
(b) Notwithstanding the foregoing, in the event that the
Receivables and other Transferred Assets are held to be property of the
Depositor, or if for any reason this Agreement is held or deemed to create
indebtedness or a security interest in the Receivables and other Transferred
Assets, then it is intended that:
(i) This Agreement shall be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New
York Uniform Commercial Code and the Uniform Commercial Code
of any other applicable jurisdiction;
28
(ii) The conveyance provided for in Section 2.1
shall be deemed to be a grant by the Depositor, and the
Depositor hereby grants, to the Issuer of a security
interest in all of its right (including the power to convey
title thereto), title and interest, whether now owned or
hereafter acquired, in and to the Receivables and other
Transferred Assets, to secure such indebtedness and the
performance of the obligations of the Depositor hereunder;
(iii) The possession by the Issuer, or the Servicer
(or Receivables Servicers) as the Issuer's agent, of the
Receivables Files and any other property as constitute
instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or
possession by the purchaser or a person designated by such
purchaser, for purposes of perfecting the security interest
pursuant to the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable
jurisdiction; and
(iv) Notifications to persons holding such
property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the
Issuer for the purpose of perfecting such security interest
under applicable law.
SECTION 9.10 No Petition. Each party hereto agrees that, prior to the
date which is one year and one day after payment in full of all obligations of
each Bankruptcy Remote Party in respect of all securities issued by any
Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to such Bankruptcy Remote Party or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect in any jurisdiction
or seeking the appointment of an administrator, a trustee, receiver,
liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of,
its creditors generally, any party hereto or any other creditor of such
Bankruptcy Remote Party, and (ii) none of the parties hereto shall commence or
join with any other Person in commencing any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or
insolvency law or statute now or hereafter in effect in any jurisdiction. This
Section shall survive the termination of this Agreement.
SECTION 9.11 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which counterparts shall be
deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
SECTION 9.12 Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
[SIGNATURES FOLLOW]
29
IN WITNESS WHEREOF, the parties have caused this Sale and Servicing
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
GS AUTO LOAN TRUST 2004-1, as Issuer
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
By:_______________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY,
as Servicer
By: ▇▇▇▇▇▇▇ Sachs Real Estate Funding
Corp., its general partner
By:_______________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET BACKED SECURITIES
CORP., as Depositor
By:_______________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:_______________________________
Name:
Title:
S-1
SCHEDULE I
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR BY THE INDENTURE TRUSTEE
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Backed Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: GS Auto Loan Trust 2004-1
-------------------------
Reference is made to the Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of February 24, 2004, among GS Auto Loan Trust
2004-1 (the "Issuer"), ▇▇▇▇▇▇▇ Sachs Asset Backed Securities Corp. (the
"Depositor"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (the "Servicer"), and ▇▇▇▇▇ Fargo
Bank, National Association, (the "Indenture Trustee"). The Indenture Trustee
hereby certifies to the Depositor, and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
(i) The Indenture Trustee has reviewed the annual report on Form
10-K for the fiscal year [ ], and all reports on Form 8-K
containing distribution reports filed in respect of periods
included in the year covered by that annual report, relating
to the above-referenced trust (the "Reports");
(ii) Based on my knowledge, the information required to be
provided by the Indenture Trustee under the Sale and
Servicing Agreement is included in these Reports. Based on
my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which
such statements were made, not misleading.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company, as Servicer, The Huntington National Bank, as
Receivables Servicer, and Ford Motor Credit Company as Receivables Servicer.
Date:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee
By:____________________________
Name:
Title:
Appendix A
DEFINITIONS AND USAGE
The following rules of construction and usage shall be applicable to
any agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined
meanings when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby
and in any certificate or other document made or delivered pursuant thereto,
accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement, instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in an agreement or instrument refer to such agreement or instrument
as a whole and not to any particular provision or subdivision thereof;
references in an agreement or instrument to "Article," "Section" or another
subdivision or to an attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to such agreement or
instrument; and the term "including" and its variations means "including
without limitation."
The definitions contained in this Appendix are equally applicable to
both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to below or
in any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes 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.
Definitions
"1934 Act Documents" shall have the meaning set forth in Section 4.8
of the Sale and Servicing Agreement.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" shall have meanings correlative to the foregoing.
"Aggregate Servicing Fee" shall mean, with respect to a Collection
Period, the aggregate of the Receivables Servicer Servicing Fees and the
Servicing Fee payable to the Receivables Servicers and the Servicer on each
Payment Date, which is equal to the product of 1/12th of 1.02% and the
aggregate Principal Balance of the Receivables as of the first day of the
related Collection Period.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the
annual rate of finance charges stated in the Receivable.
"Authenticating Agent" shall have the meaning specified in Section
2.14 of the Indenture or 3.11 of the Trust Agreement, as applicable.
"Authorized Officer" shall mean, (i) with respect to the Issuer, any
officer within the Corporate Trust Office of the Owner Trustee, including any
vice president, assistant vice president, secretary, assistant secretary or
any other officer of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers; and (ii)
with respect to the Indenture Trustee or the Owner Trustee, any officer within
the Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as
the case may be, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of the Indenture Trustee
or the Owner Trustee, as the case may be, customarily performing functions
similar to those performed by any of the above designated officers 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.
"Available Collections" shall mean, for any Payment Date, the sum of
the following amounts with respect to the Collection Period preceding such
Payment Date: (i) all amounts representing Collections on the Receivables
received from the Receivables Servicers with respect to such Collection Period
and (ii) amounts representing the purchase price received for Receivables
which were required to be purchased by the applicable Receivables Servicer
under the applicable Originator Agreement; provided, however, that in
calculating the Available Collections the following will be excluded: (a) any
portion of the Receivables Servicer Servicing Fee retained by a Receivables
2
Servicer from Collections in respect of the Receivables serviced by it; (b)
any amounts with respect to Receivables purchased by an Originator or
Receivables Servicer for which the purchase price of which has been included
in the Available Collections for a prior Collection Period; (c) any
Supplemental Servicing Fees; and (d) any other amounts that the Receivables
Servicers are entitled to retain under their respective Receivables Servicing
Agreements.
"Available Funds" shall mean, with respect to any Payment Date, the
sum of (a) the Available Collections for the related Collection Period, (b)
the deposits made to the Collection Account pursuant to Section 4.4 and,
without duplication, Section 8.1 of the Sale and Servicing Agreement and (c)
the Receivables Servicer Supplemental Payment Amount.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C. 101 et seq., as amended.
"Bankruptcy Remote Party" shall mean each of the Depositor, the
Issuer, any other trust created by the Depositor or any limited liability
company wholly-owned by the Depositor.
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreement, the Indenture, the Huntington Assignment, Assumption and
Recognition Agreement, the Huntington Representations and Warranties
Agreement, the Ford Credit Acknowledgement, the Underwriting Agreement, the
Note Depository Agreement and the other documents and certificates delivered
in connection therewith.
"Book-Entry Note" shall mean a beneficial interest in any of the
Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, the
Class B Notes, the Class C Notes and the Class D Notes, in each case issued in
book-entry form.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions or trust companies in the State of New
York, the State of Delaware, the State of Ohio, the State of Michigan or the
state in which the Corporate Trust Office of the Indenture Trustee are
authorized by law, regulation or executive order to be closed.
"Certificate Distribution Account" shall mean the account established
and maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Certificate of Trust" shall mean the Certificate of Trust in the
form of Exhibit B to the Trust Agreement filed for the Issuer pursuant to
Section 3810(a) of the Statutory Trust Statute.
"Certificate Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.9 of the Trust Agreement and shall
initially be ▇▇▇▇▇ Fargo.
"Certificate Percentage Interest" shall mean, with respect to a
Certificate, the percentage specified on such Certificate as the Certificate
Percentage Interest, which percentage represents the beneficial interest of
such Certificate in the Issuer. The aggregate Percentage Interest shall be
100%.
"Certificate Register" shall mean the certificate register maintained
pursuant to Section 3.4 of the Trust Agreement.
3
"Certificate Registrar" shall mean any certificate registrar acting
in accordance with Section 3.4 of the Trust Agreement and shall initially be
the Owner Trustee.
"Certificateholder" or "holder of a Certificate" shall mean a Person
in whose name a Certificate is registered in the Certificate Register.
"Certificates" shall mean the certificates evidencing the beneficial
interest of a Certificateholder in the Issuer, substantially in the form of
Exhibit A to the Trust Agreement; provided, however, that the Owner Trust
Estate has been pledged to the Indenture Trustee to secure payment of the
Notes and that the rights of the Certificateholders to receive distributions
on the Certificates are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement, the Indenture and the Trust
Agreement.
"Class" shall mean any one of the classes of Notes.
"Class A Interest Payment Amount" shall mean, with respect to any
Payment Date, the sum of the Class A-1 Interest Payment Amount for such
Payment Date, the Class A-2 Interest Payment Amount for such Payment Date, the
Class A-3 Interest Payment Amount for such Payment Date and the Class A-4
Interest Payment Amount for such Payment Date.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to the greater of (a) the Outstanding Amount of
the Class A-1 Notes immediately prior to such Payment Date and (b) an amount
equal to (i) the Outstanding Amount of the Class A Notes immediately prior to
such Payment Date minus (ii) the lesser of (A) 88.0% of the Pool Balance as of
the last day of the related Collection Period and (B) an amount equal to (1)
the Pool Balance as of the last day of the related Collection Period minus (2)
the Target Overcollateralization Level for such Payment Date; provided,
however, that, unless the Class A Notes have been paid in full, for any
Payment Date as of which the Three-Month Annualized Net Loss Ratio is greater
than or equal to the Sequential Principal Payment Trigger Percentage in effect
on such Payment Date, the Class A Principal Payment Amount will be 100% of the
Regular Allocation of Principal for such Payment Date; provided, further, that
on the Final Scheduled Payment Date of any class of Class A Notes, the Class A
Principal Payment Amount will not be less than the amount such is necessary to
pay such class of Class A Notes in full; and provided, further, that the Class
A Principal Payment Amount on any Payment Date will not exceed the Outstanding
Amount of the Class A Notes on such Payment Date.
"Class A-1 Final Scheduled Payment Date" shall mean the February 2005
Payment Date.
"Class A-1 Interest Payment Amount" shall mean (a) with respect to
the initial Payment Date, the product of (i) 1/360 of the Class A-1 Interest
Rate times (ii) the actual number of days from and including the Closing Date
to and excluding the initial Payment Date times (iii) the Outstanding Amount
of the Class A-1 Notes as of the Closing Date; and (b) with respect to any
subsequent Payment Date, the sum of (i) the product of (x) 1/360 of the Class
A-1 Interest Rate times (y) the actual number of days from and including the
immediately preceding Payment Date to and excluding such subsequent Payment
Date times (z) the Outstanding Amount of the Class A-1 Notes as of the
4
immediately preceding Payment Date after giving effect to all payments of
principal of the Class A-1 Notes on such immediately preceding Payment Date
and (ii) the amount of Class A-1 Interest Payment Amount payable on the prior
Payment Date but not paid, if any, together with interest thereon (to the
extent permitted by law) at the Class A-1 Interest Rate.
"Class A-1 Interest Rate" shall mean 1.11%.
"Class A-1 Noteholder" shall mean the Person in whose name a Class
A-1 Note is registered in the Note Register.
"Class A-1 Notes" shall mean the $336,137,000 aggregate initial
principal amount Class A-1 1.11% Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-1 to the
Indenture.
"Class A-2 Final Scheduled Payment Date" shall mean the September
2006 Payment Date.
"Class A-2 Interest Payment Amount" shall mean (a) with respect to
the initial Payment Date, the product of (i) 1/360 of the Class A-2 Interest
Rate times (ii) the number of days from and including the Closing Date to and
excluding the 15th day of the calendar month in which the initial Payment Date
occurs (calculated on the basis of a 360-day year consisting of twelve 30-day
months) times (iii) the Outstanding Amount of the Class A-2 Notes as of the
Closing Date; and (b) with respect to any subsequent Payment Date, the sum of
(i) the product of (x) one-twelfth of the Class A-2 Interest Rate times (y)
the Outstanding Amount of the Class A-2 Notes as of the immediately preceding
Payment Date after giving effect to all payments of principal of the Class A-2
Notes on such immediately preceding Payment Date and (ii) the amount of Class
A-2 Interest Payment Amount payable on the prior Payment Date but not paid, if
any, together with interest thereon (to the extent permitted by law) at the
Class A-2 Interest Rate.
"Class A-2 Interest Rate" shall mean 1.50%.
"Class A-2 Noteholder" shall mean the Person in whose name a Class
A-2 Note is registered in the Note Register.
"Class A-2 Notes" shall mean the $297,914,000 aggregate initial
principal amount Class A-2 1.50% Asset Backed Notes issued by the Issuer
pursuant to the Indenture, substantially in the form of Exhibit A-2 to the
Indenture.
"Class A-3 Final Scheduled Payment Date" shall mean the November 2007
Payment Date.
"Class A-3 Interest Payment Amount" shall mean (a) with respect to
the initial Payment Date, the product of (i) 1/360 of the Class A-3 Interest
Rate times (ii) the number of days from and including the Closing Date to and
excluding the 15th day of the calendar month in which the initial Payment Date
occurs (calculated on the basis of a 360-day year consisting of twelve 30-day
months) times (iii) the Outstanding Amount of the Class A-3 Notes as of the
Closing Date; and (b) with respect to any subsequent Payment Date, the sum of
5
(i) the product of (x) one-twelfth of the Class A-3 Interest Rate times (y)
the Outstanding Amount of the Class A-3 Notes as of the immediately preceding
Payment Date after giving effect to all payments of principal of the Class A-3
Notes on such immediately preceding Payment Date and (ii) the amount of Class
A-3 Interest Payment Amount payable on the prior Payment Date but not paid, if
any, together with interest thereon (to the extent permitted by law) at the
Class A-3 Interest Rate.
"Class A-3 Interest Rate" shall mean 2.13%.
"Class A-3 Noteholder" shall mean the Person in whose name a Class
A-3 Note is registered in the Note Register.
"Class A-3 Notes" shall mean $314,944,000 aggregate initial principal
amount Class A-3 2.13% Asset Backed Notes issued by the Issuer pursuant to the
Indenture, substantially in the form of Exhibit A-3 to the Indenture.
"Class A-4 Final Scheduled Payment Date" shall mean the May 2011
Payment Date.
"Class A-4 Interest Payment Amount" shall mean (a) with respect to
the initial Payment Date, the product of (i) 1/360 of the Class A-4 Interest
Rate times (ii) the number of days from and including the Closing Date to and
excluding the 15th day of the calendar month in which the initial Payment Date
occurs (calculated on the basis of a 360-day year consisting of twelve 30-day
months) times (iii) the Outstanding Amount of the Class A-4 Notes as of the
Closing Date; and (b) with respect to any subsequent Payment Date, the sum of
(i) the product of (x) one-twelfth of the Class A-4 Interest Rate times (y)
the Outstanding Amount of the Class A-4 Notes as of the immediately preceding
Payment Date after giving effect to all payments of principal of the Class A-4
Notes on such immediately preceding Payment Date and (ii) the amount of Class
A-4 Interest Payment Amount payable on the prior Payment Date but not paid, if
any, together with interest thereon (to the extent permitted by law) at the
Class A-4 Interest Rate.
"Class A-4 Interest Rate" shall mean 2.65%.
"Class A-4 Noteholder" shall mean the Person in whose name a Class
A-4 Note is registered in the Note Register.
"Class A-4 Notes" shall mean the $224,081,000 aggregate initial
principal amount Class A-4 2.65% Asset Backed Notes issued by the Issuer under
the Indenture, substantially in the form of Exhibit A-4 to the Indenture.
"Class B Final Scheduled Payment Date" shall mean the May 2011
Payment Date.
"Class B Interest Payment Amount" shall mean (a) with respect to the
initial Payment Date, the product of (i) 1/360 of the Class B Interest Rate
times (ii) the number of days from and including the Closing Date to and
excluding the 15th day of the calendar month in which the initial Payment Date
occurs (calculated on the basis of a 360-day year consisting of twelve 30-day
months) times (iii) the Outstanding Amount of the Class B Notes as of the
Closing Date; and (b) with respect to any subsequent Payment Date, the sum of
(i) the product of (x) one-twelfth of the Class B Interest Rate times (y) the
Outstanding Amount of the Class B Notes as of the immediately preceding
6
Payment Date after giving effect to all payments of principal of the Class B
Notes on such immediately preceding Payment Date and (ii) the amount of Class
B Interest Payment Amount payable on the prior Payment Date but not paid, if
any, together with interest thereon (to the extent permitted by law) at the
Class B Interest Rate.
"Class B Interest Rate" shall mean 2.15%.
"Class B Notes" shall mean the $56,587,000 aggregate initial
principal amount Class B 2.15% Asset Backed Notes issued by the Issuer under
the Indenture, substantially in the form of Exhibit B to the Indenture.
"Class B Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date) and (ii) the Outstanding Amount
of the Class B Notes immediately prior to such Payment Date minus (b) the
lesser of (i) 92.5% of the Pool Balance as of the last day of the related
Collection Period and (ii) an amount equal to (A) the Pool Balance as of the
last day of the related Collection Period minus (B) the Target
Overcollateralization Level for such Payment Date; provided, however, that,
for any Payment Date as of which the Three-Month Annualized Net Loss Ratio is
greater than or equal to the Sequential Principal Payment Trigger Percentage
in effect on such Payment Date, the Class B Principal Payment Amount will be
an amount equal to (x) 100% of the Regular Allocation of Principal for such
Payment Date minus (y) the Class A Principal Payment Amount for such Payment
Date; provided, further, that on the Final Scheduled Payment Date of any class
of Class B Notes, the Class B Principal Payment Amount will not be less than
the amount such is necessary to pay such class of Class B Notes in full; and
provided, further, that the Class B Principal Payment Amount on any Payment
Date will not exceed the Outstanding Amount of the Class B Notes on such
Payment Date.
"Class C Final Scheduled Payment Date" shall mean the May 2011
Payment Date.
"Class C Interest Payment Amount" shall mean (a) with respect to the
initial Payment Date, the product of (i) 1/360 of the Class C Interest Rate
times (ii) the number of days from and including the Closing Date to and
excluding the 15th day of the calendar month in which the initial Payment Date
occurs (calculated on the basis of a 360-day year consisting of twelve 30-day
months) times (iii) the Outstanding Amount of the Class C Notes as of the
Closing Date; and (b) with respect to any subsequent Payment Date, the sum of
(i) the product of (x) one-twelfth of the Class C Interest Rate times (y) the
Outstanding Amount of the Class C Notes as of the immediately preceding
Payment Date after giving effect to all payments of principal of the Class C
Notes on such immediately preceding Payment Date and (ii) the amount of Class
C Interest Payment Amount payable on the prior Payment Date but not paid, if
any, together with interest thereon (to the extent permitted by law) at the
Class C Interest Rate.
"Class C Interest Rate" shall mean 2.68%.
"Class C Noteholder" shall mean the Person in whose name a Class C
Note is registered in the Note Register.
7
"Class C Notes" shall mean the $26,704,000 aggregate initial
principal amount Class C 2.68% Asset Backed Notes issued by the Issuer under
the Indenture, substantially in the form of Exhibit C to the Indenture.
"Class C Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date), (ii) the Outstanding Amount of
the Class B Notes (after taking into account distribution of the Class B
Principal Payment Amount on such Payment Date) and (iii) the Outstanding
Amount of the Class C Notes immediately prior to such Payment Date minus (b)
the lesser of (i) 94.5% of the Pool Balance as of the last day of the related
Collection Period minus (B) the Target Overcollateralization Level for such
Payment Date; provided, however, that for any Payment Date as of which the
Three-Month Annualized Net Loss Ratio is greater than or equal to the
Sequential Principal Payment Trigger Percentage in effect on such Payment
Date, the Class C Principal Payment Amount will be an amount equal to (x) 100%
of the Regular Allocation of Principal for such Payment Date minus (y) an
amount equal to the sum of (1) the Class A Principal Payment Amount for such
Payment Date plus (2) the Class B Principal Payment Amount for such Payment
Date; provided, further, that on the Final Scheduled Payment Date of any class
of Class C Notes, the Class C Principal Payment Amount will not be less than
the amount such is necessary to pay such class of Class C Notes in full; and
provided, further, that the Class C Principal Payment Amount on any Payment
Date will not exceed the Outstanding Amount of the Class C Notes on such
Payment Date.
"Class D Final Scheduled Payment Date" shall mean the May 2011
Payment Date.
"Class D Interest Payment Amount" shall mean (a) with respect to the
initial Payment Date, the product of (i) 1/360 of the Class D Interest Rate
times (ii) the number of days from and including the Closing Date to and
excluding the initial Payment Date (calculated on the basis of a 360-day year
consisting of twelve 30-day months) times (iii) the Outstanding Amount of the
Class D Notes as of the Closing Date; and (b) with respect to any subsequent
Payment Date, the sum of (i) the product of (x) one-twelfth of the Class D
Interest Rate times (y) the Outstanding Amount of the Class D Notes as of the
immediately preceding Payment Date after giving effect to all payments of
principal of the Class D Notes on such immediately preceding Payment Date and
(ii) the amount of Class D Interest Payment Amount payable on the prior
Payment Date but not paid, if any, together with interest thereon (to the
extent permitted by law) at the Class D Interest Rate.
"Class D Interest Rate" shall mean 5.00%.
"Class D Noteholder" shall mean the Person in whose name a Class D
Note is registered in the Note Register.
"Class D Notes" shall mean $29,248,000 aggregate initial principal
amount Class D 5.00% Asset Backed Notes issued by the Issuer pursuant to the
Indenture, substantially in the form of Exhibit D to the Indenture.
8
"Class D Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) 100% of the Regular Allocation of
Principal for such Payment Date minus (b) an amount equal to the sum of (i)
the Class A Principal Payment Amount for such Payment Date, (ii) the Class B
Principal Payment Amount for such Payment Date and (iii) the Class C Principal
Payment Amount for such Payment Date; provided, however, that, on the Final
Scheduled Payment Date for the Class D Notes, the Class D Principal Payment
Amount will not be less than the amount such is necessary to pay the Class D
Notes in full; and provided, further, that the Class D Principal Payment
Amount on any Payment Date will not exceed the Outstanding Amount of the Class
D Notes on such Payment Date.
"Clearance System" shall have the meaning specified in Section 2.2 of
the Indenture.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean 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" shall mean February 24, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause
of the Indenture.
"Collection Account" shall mean the account or accounts established
and maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Collection Period" shall mean, with respect to each Payment Date,
the calendar month preceding the calendar month in which such Payment Date
occurs.
"Collections" shall mean, with respect to any Collection Period, all
amounts received from the Receivables Servicers in respect of such Collection
Period which represent: (a) payments by or on behalf of Obligors on the
Receivables, (b) Liquidation Proceeds, (c) proceeds under physical damage and
other insurance policies relating to the Obligor or the Financed Vehicle and
(d) any other amounts received from the Receivables Servicers in respect of
the Receivables which are required to be remitted to the holder of the
applicable Receivables; provided, however, that the term "Collections" shall
exclude any Supplemental Servicing Fees.
"Commission" shall mean the Securities and Exchange Commission.
"Controlling Class" shall mean (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, the Class D Notes.
9
"Corporate Trust Office" shall mean, (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or at such other address as the Owner Trustee may designate from time to time
by notice to the Certificateholders and the Depositor, or the principal
corporate trust office of any successor Owner Trustee (the address of which
the successor Owner Trustee will notify the Certificateholders and the
Depositor); and (ii) with respect to the Indenture Trustee, the principal
corporate trust office of the Indenture Trustee located at MAC ▇▇▇▇▇-▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services/Asset-Backed 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 (the address of which the successor Indenture Trustee will
notify the Noteholders and the Issuer).
"Cut-off Date" shall mean January 31, 2004.
"Dealer" shall mean a dealer who sold a Financed Vehicle and who
originated and sold the related Receivable, directly or indirectly, to Ford
Credit or Huntington.
"Default" shall mean any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Certificates" shall have the meaning specified in Section
3.10 of the Trust Agreement.
"Definitive Notes" shall have the meaning specified in Section 2.11
of the Indenture.
"Depositor" shall mean ▇▇▇▇▇▇▇ Sachs Asset Backed Securities Corp., a
Delaware corporation and its successors and permitted assigns.
"Depository Institution" shall mean ▇▇▇▇▇ Fargo (or another Eligible
Institution) as the depository institution at which the Ford Credit Deposit
Account and the Huntington Deposit Account are maintained.
"Determination Date" means the first Business Day preceding any
Payment Date.
"Eligible Deposit Account" shall mean either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the U.S. or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" shall mean either (i) the corporate trust
department of the Indenture Trustee or the related Trustee, as applicable;
(ii) a depository institution organized under the laws of the U.S. or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1) which has either (A) a long-term unsecured debt rating of
at least "AA-" by Standard & Poor's and "Aa3" by Moody's or (B) a short-term
unsecured debt rating or certificate of deposit rating of "A-1+" by Standard &
Poor's and "Prime-1" by Moody's and (2) whose deposits are insured by the
Federal Deposit Insurance Corporation or (iii) any depository institution or
trust company in respect of which the Rating Agency Condition is satisfied.
10
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of
the Indenture.
"Event of Servicing Termination" shall mean an event specified in
Section 7.1 of the Sale and Servicing Agreement.
"Excess Allocation of Principal" shall mean, with respect to any
Payment Date, an amount not less than zero equal to the excess, if any, of (a)
the aggregate outstanding principal amount of all the Notes as of the
preceding Payment Date (after giving effect to any principal payments made on
the Notes on such preceding Payment Date); over (b) the sum of (i) the Pool
Balance at the end of the Collection Period preceding such Payment Date minus
the Target Overcollateralization Level with respect to such Payment Date; and
plus (ii) the sum of the First Allocation of Principal, if any, the Second
Allocation of Principal, if any, the Third Allocation of Principal, if any,
and the Regular Allocation of Principal, if any, each with respect to such
Payment Date; provided, however, that the Excess Allocation of Principal shall
not exceed the aggregate outstanding principal amount of all the Notes on such
Payment Date (after giving effect to any principal payments made on the
securities on such Payment Date in respect of the First Allocation of
Principal, if any, the Second Allocation of Principal, the Third Allocation of
Principal and the Regular Allocation of Principal, if any); and provided,
further, that on or after the Final Scheduled Payment Date relating to the
Class D Notes, the Excess Allocation of Principal shall not be less than the
amount that is necessary to reduce the balance of the Class D Notes to zero.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation and, with respect to any partnership, any
general partner thereof.
"Final Scheduled Payment Date" shall mean, with respect to (i) the
Class A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class
A-2 Notes, the Class A-2 Final Scheduled Payment Date, (iii) the Class A-3
Notes, the Class A-3 Final Scheduled Payment Date, (iv) the Class A-4 Notes,
the Class A-4 Final Scheduled Payment Date, (v) the Class B Notes, the Class B
Final Scheduled Payment Date, (vi) the Class C Notes, the Class C Final
Scheduled Payment Date and (vii) the Class D Notes, the Class D Final
Scheduled Payment Date.
"Financed Vehicle" shall mean a new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
11
"First Allocation of Principal" shall mean, with respect to any
Payment Date, an amount equal to the excess, if any, of (x) the Outstanding
Amount of the Class A Notes as of the preceding Payment Date (after giving
effect to any principal payments made on the Class A Notes on such preceding
Payment Date) or, in the case of the initial Payment Date, the Closing Date,
over (y) the Pool Balance as of the end of the related Collection Period;
provided, however, that the First Allocation of Principal for any Payment Date
on or after the Final Scheduled Payment Date for any class of Class A Notes
shall not be less than the amount such is necessary to reduce the Outstanding
Amount for such class of Class A Notes to zero.
"Ford Credit" shall mean Ford Motor Credit Company, a Delaware
corporation, and its successors.
"Ford Credit Acknowledgment" shall mean the acknowledgement executed
by Ford Credit, dated as of the Closing Date.
"Ford Credit Agreements" means the Ford Credit Purchase Agreement and
the Ford Credit Servicing Agreement.
"Ford Credit Deposit Account" shall mean the account at the
Depository Institution into which collections on the Ford Credit Receivables
are deposited.
"Ford Credit Purchase Agreement" shall mean the Purchase and Sale
Agreement, dated as of May 1, 2003, by and between Ford Credit and the Seller.
"Ford Credit Receivables" shall mean the Receivables listed in
Schedule A to the Sale and Servicing Agreement as the Ford Credit Receivables,
which Receivables were sold by Ford Credit to the Seller under the Ford Credit
Purchase Agreement and by the Seller to the Depositor under the Receivables
Purchase Agreement.
"Ford Credit Receivables Representations" shall mean the
representations and warranties by Ford Credit about the Ford Credit
Receivables, as such representations and warranties are set forth in the Ford
Credit Purchase Agreement, the breach of which would result in a requirement
by Ford Credit to repurchase the Receivable under the Ford Credit Purchase
Agreement.
"Ford Credit Servicing Agreement" shall mean the Servicing Agreement,
dated as of May 1, 2003, by and between Ford Credit and the Seller.
"Global Note" shall have the meaning specified in Section 2.2 of the
Indenture.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to ▇▇▇▇▇ ▇
▇▇▇▇ upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the 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 monies 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.
12
"Guaranty" shall mean the Guaranty, dated as of the Closing Date,
issued by The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc. in favor of the Issuer.
"Huntington" shall mean The Huntington National Bank, a national
banking association, and its successors.
"Huntington Agreements" means the Huntington Purchase and Servicing
Agreement and the Huntington Assignment, Assumption and Recognition Agreement.
"Huntington Assignment, Assumption and Recognition Agreement" shall
mean the Assignment, Assumption and Recognition Agreement, dated as of the
Closing Date, by and among Huntington, the Seller and the Depositor.
"Huntington Deposit Account" shall mean the account at the Depository
Institution into which collections on the Huntington Receivables are
deposited.
"Huntington Purchase and Servicing Agreement" means the Purchase and
Servicing Agreement, dated as of October 31, 2003, by and between Huntington
and the Seller.
"Huntington Receivables" shall mean the Receivables listed on
Schedule A to the Sale and Servicing Agreement as the Huntington Receivables,
which were sold by Huntington to the Seller under the Huntington Purchase and
Servicing Agreement and by the Seller to the Depositor under the Receivables
Purchase Agreement.
"Huntington Receivables Representations" shall mean the
representations and warranties by Huntington about the Huntington Receivables,
as such representations and warranties are set forth in the Huntington
Purchase and Servicing Agreement or the Huntington Representations and
Warranties Agreement, the breach of which would result in a requirement by
Huntington to repurchase the Receivable under the either such agreement.
"Huntington Representations and Warranties Agreement" shall mean the
Representations and Warranties Agreement, dated as of the Closing Date, by and
among Huntington, the Seller, the Depositor, the Issuer and the Servicer.
"Indenture" shall mean the Indenture, dated as of the Closing Date,
by and between the Issuer and the Indenture Trustee.
"Indenture Secured Parties" shall mean the Noteholders.
"Indenture Trust Estate" shall mean all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of Indenture for the benefit of the Indenture Secured
Parties (including, without limitation, all property and interests Granted to
the Indenture Trustee), including all proceeds thereof.
13
"Indenture Trustee" shall mean ▇▇▇▇▇ Fargo, not in its individual
capacity but solely as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Indenture Trustee Fee" means the fee payable to the Indenture
Trustee, as set forth in the fee letter from the Indenture Trustee to the
Depositor.
"Independent" shall mean, 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 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 or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Depositor 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" shall mean 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 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by 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 the Indenture and that the signer
is Independent within the meaning thereof.
"Insolvency Event" shall mean, with respect to any Person, (i) the
making of a general assignment for the benefit of creditors, (ii) the filing
of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in (vii) below,
(vi) seeking, consent to or acquiescing in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of the
assets of such Person or (vii) the failure to obtain dismissal within 60 days
of the commencement of any proceeding against such Person seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the GS Auto Loan Trust 2004-1, a Delaware
statutory trust, and its successors.
"Issuer Order" and "Issuer Request" shall mean 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.
"Lien" shall mean a security interest, lien, charge, pledge, equity,
or encumbrance of any kind other than tax liens, mechanics' liens, and any
liens which arise by operation of law.
14
"Liquidated Receivable" shall mean any Receivable that, by its terms,
is in default and (i) as to which the applicable Receivables Servicer has
repossessed and disposed of the related Financed Vehicle or (ii) any other
condition has occurred under the applicable Receivables Servicing Agreement
which requires such Receivable to be treated as a "liquidated receivable",
"defaulted receivable" or similar concept.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, all amounts collected in connection with the liquidation of such
Liquidated Receivable, net of any expenses or other amounts the applicable
Receivables Servicer is permitted to deduct under the related Originator
Agreement.
"London Business Day" shall mean any day other than a Saturday,
Sunday or day on which banking institutions in London, England are authorized
or obligated by law or government decree to be closed.
"Memorandum" shall mean the Private Placement Memorandum dated
February 11, 2004, relating to Class D Notes and the Certificates.
"Monthly Report" shall mean the Report prepared by the Servicer
pursuant to Section 3.8 of the Sale and Servicing Agreement containing, among
other things, the information set forth in Section 4.7 of the Sale and
Servicing Agreement.
"Monthly Remittance Condition" shall mean (a) with respect to Ford
Credit, the "Monthly Remittance Condition" as defined in the Ford Credit
Servicing Agreement and (b) with respect to Huntington, the condition
described in Section 4.03(a) of the Huntington Purchase and Servicing
Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or its successor
in interest.
"Net Liquidation Losses" means with respect to any Collection Period,
the amount, if any, by which (a) the aggregate Principal Balance of all
Receivables that became Liquidated Receivable during that Collection Period
exceeds (b) any and all recoveries received during that Collection Period.
"Net Servicing Fee" shall mean, with respect to any Collection
Period, the Servicing Fee for that Collection Period minus the Netted
Receivables Servicer Servicing Fee Amount for that Collection Period.
"Netted Receivables Servicer Servicing Fee Amount" shall mean, with
respect to any Collection Period, the amount that was retained or netted by
the Receivables Servicers from collections received during that Collection
Period in respect of the Receivables Servicer Servicing Fee for that
Collection Period.
"Note Depositary Agreement" shall mean the Letter of Representations,
dated as of the Closing Date by and among the Issuer, the Indenture Trustee,
as agent and The Depository Trust Company regarding the Notes.
15
"Note Depository" shall mean The Depository Trust Company or any
successor depository.
"Note Factor" shall mean, with respect to each Class of Notes as of
the close of business on the last day of a Collection Period, a nine-digit
decimal figure equal to the outstanding principal balance of such Class of
Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. The Note Factor will be 1.00000000
as of the Closing Date; thereafter, the Note Factor will decline to reflect
reductions in the outstanding principal amount of such Class of Notes.
"Note Owner" shall mean, with respect to any 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 Paying Agent" shall mean the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the Issuer to
make payments to and distributions from the Collection Account and the
Principal Distribution Account, including payment of principal of or interest
on the Notes on behalf of the Issuer.
"Note Register" and "Note Registrar" shall have the respective
meanings specified in Section 2.5 of the Indenture.
"Noteholder" or "holder of a Note" shall mean the Person in whose
name a Note is registered on the Note Register.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and
the Class D Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers
of the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Offered Notes" shall mean, collectively, the Class A Notes, the
Class B Notes, and the Class C Notes.
"Officer's Certificate" shall mean (i) with respect to the Issuer, a
certificate signed by any Authorized Officer of the Issuer and (ii) with
respect to the Depositor or the Servicer, a certificate signed by any officer
of the Depositor or the Servicer, as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel which
counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or the
Rating Agencies, as applicable.
"Optional Purchase Price" shall mean, with respect to any Payment
Date, an amount equal to the greater of (a) the fair market value of the Trust
Estate as of such Payment Date or (b) the sum of (i) the unpaid principal
amount of the Notes plus accrued and unpaid interest thereon up to but
excluding that Payment Date and (ii) all amounts owing by the Issuer to the
Owner Trustee, the Indenture Trustee and the Servicer as of such Payment Date,
to the extent not previously paid.
16
"Original Pool Balance" shall mean an amount equal to the aggregate
Principal Balance of the Receivables as of the Cut-off Date, which shall be
$1,271,628,119.69.
"Originator" shall mean Huntington, with respect to the Huntington
Receivables, and Ford Credit, with respect to the Ford Credit Receivables.
"Originator Agreement" means a Ford Credit Agreement or a Huntington
Agreement.
"Other Assets" shall mean any assets (or interests therein) (other
than the Trust Property) conveyed or purported to be conveyed by the Depositor
to another Person or Persons other than the Issuer, whether by way of a sale,
capital contribution or by virtue of the granting of a lien.
"Outstanding" shall mean with respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture, as applicable, except:
(a) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the
Indenture Trustee or any Note Paying Agent in trust for the
Noteholders of such Notes (provided, however, that if such Notes are
to be prepaid, notice of such prepayment has been duly given pursuant
to the Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(c) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to the Indenture
unless proof satisfactory to the Indenture Trustee or the Note
Registrar, as applicable, is presented that any such notes are held
by a bona fide purchaser;
provided, that in determining whether the holders of Notes evidencing the
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Servicer 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, shall be protected in relying on any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that a Responsible Officer of the Indenture Trustee knows to be so owned
shall be so disregarded; provided, however, if the Issuer, any other obligor
upon the Notes, the Depositor, the Servicer or any Affiliate of any of the
foregoing Persons owns an entire Class of Notes, such Notes shall be deemed to
be Outstanding. Notes owned by the Issuer, any other obligor upon the Notes,
the Depositor, the Servicer or any Affiliate of any of the foregoing Persons
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Depositor, the Servicer or any
Affiliate of any of the foregoing Persons.
17
"Outstanding Amount" shall mean, 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.
"Owner Trust Estate" shall mean all right, title and interest of the
Issuer in, to and under the property and rights assigned to the Issuer
pursuant to Article II of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee under the Trust Agreement, or any successor Owner Trustee under the
Trust Agreement.
"Owner Trustee Fee" means the fee payable to the Owner Trustee, as
set forth in the fee letter from the Owner Trustee to the Depositor.
"Participant" shall mean a participant in or member of the Note
Depository.
"Payment Date" shall mean the 15th day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day.
"Percentage Interest" shall mean, with respect to a Certificate, the
individual percentage interest of such Certificate, which shall be specified
on the face thereof, in the distributions on the Certificates. The sum of the
Percentage Interests for all Certificates shall be 100%.
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct non-callable obligations of, and obligations
fully guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof
(or any domestic branch of a foreign bank) and subject to supervision
and examination by federal or State banking or depository institution
authorities; provided, however, that at the time of the investment or
contractual commitment to invest therein, the commercial paper or
other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person
other than such depository institution or trust company) thereof
shall have a credit rating from each of the Rating Agencies in the
highest investment category granted thereby;
(c) commercial paper having, at the time of the investment
or contractual commitment to invest therein, a rating from each of
the Rating Agencies in the highest investment category granted
thereby;
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(d) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category
granted thereby (including funds for which the Indenture Trustee or
the Owner Trustee or any of their respective Affiliates is investment
manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct non-callable obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment with respect to which the Rating
Agency Condition is satisfied.
Each of the Permitted Investments may be purchased by the Indenture Trustee or
through an affiliate of the Indenture Trustee.
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Plan" shall mean an employee benefit or other plan or arrangement
(such as an individual retirement account or ▇▇▇▇▇ plan) that is subject to
ERISA, Section 4975 of the Code or a Similar Law, or an entity deemed to hold
the assets of any of the foregoing by reason of investment by an employee
benefit plan or other plan in such entity.
"Plan Assets Regulation" shall mean the Department of Labor's
regulation set forth at 29 C.F.R. 2510.3-101.
"Pool Balance" shall mean, with respect to any Payment Date, an
amount equal to the aggregate Principal Balance of the Receivables at the end
of the related Collection Period, after giving effect to all payments of
principal received from Obligors and Purchase Amounts to be remitted for the
related Collection Period.
"Pool Factor" as of the last day of a Collection Period shall mean a
nine-digit decimal figure equal to the Pool Balance at that time divided by
the Original Pool Balance.
"Predecessor Note" shall mean, 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 purposes of this definition, any
Note authenticated and delivered under Section 2.6 of the Indenture 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.
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"Prepayment Date" shall mean with respect to a prepayment of the
Notes pursuant to Section 10.1 of the Indenture, the Payment Date specified by
Servicer or the Issuer pursuant to Section 10.1 of the Indenture.
"Prepayment Price" shall mean in the case of a Class of Notes to be
prepaid, an amount equal to the unpaid principal amount of such Class of Notes
plus accrued and unpaid interest thereon at the applicable Note Interest Rate
plus interest on any overdue interest at the applicable Note Interest Rate (to
the extent lawful) to but excluding the Prepayment Date.
"Principal Balance" means, with respect to a Receivable, the
principal balance of such Receivable on the books and records of the
applicable Receivables Servicer, calculated in accordance with the customary
practices of the Receivables Servicer.
"Principal Distribution Account" shall mean the account established
and maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Prospectus Supplement" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Amount" shall mean (a) for a repurchase of a Ford Credit
Receivable, the purchase price for repurchases under the Ford Credit Purchase
Agreement, and (b) for a repurchase of a Huntington Receivable, the purchase
price for repurchases under the applicable Huntington Agreement.
"Purchased Property" shall mean, collectively, (i) the Receivables,
(ii) all Collections received after the Cut-off Date, (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles,
(iv) the Receivable Files, (v) the rights of the Seller under the Ford Credit
Agreements and the Huntington Agreements and (vi) all proceeds of the
foregoing.
"Purchased Receivable" shall mean a Receivable purchased pursuant to
Section 3.6 of the Sale and Servicing Agreement or repurchased pursuant to
Section 2.3 of the Sale and Servicing Agreement.
"Qualified Institutional Buyer" shall mean a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act.
"Rating Agency" means Standard and Poor's or Moody's, as the context
may require. If none of Standard and Poor's, Moody's or a successor thereto
remains in existence, "Rating Agency" shall mean any nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which shall be given to the Indenture Trustee, the Owner
Trustee and the Servicer.
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"Rating Agency Condition" shall mean, with respect to any action,
that each of the Rating Agencies shall have notified the Servicer, the
Depositor, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the then current rating
of any of the Notes.
"Receivable Files" shall mean the documents specified in Section 2.4
of the Sale and Servicing Agreement.
"Receivables" shall mean the motor vehicle retail installment sales
contract and loans listed on Schedule A to the Sale and Servicing Agreement
and all proceeds thereof and rights to payments thereunder.
"Receivables Purchase Agreement" shall mean the Receivables Purchase
Agreement, dated as of the Closing Date, by and between the Seller, as seller,
and the Depositor, as purchaser.
"Receivables Servicer" shall mean (i) Ford Credit with respect to the
Ford Credit Receivables and (ii) Huntington with respect to the Huntington
Receivables.
"Receivables Servicer Servicing Fee" shall mean, with respect to a
Collection Period a fee equal to one-twelfth of the Receivables Servicing Fee
Rate multiplied by the aggregate Principal Balance of those Receivables
serviced by such Receivables Servicer as of the first day of that Collection
Period.
"Receivables Servicer Supplemental Payment Amount" shall mean, with
respect to any Payment Date, the lesser of (a) the Netted Receivables Servicer
Servicing Fee Amount for the related Collection Period and (b) the excess, if
any, of (i) the aggregate amount required to pay in full those payments
described in Section 8.2(c)(i) through (x) of the Indenture for such Payment
Date over (ii) the Available Funds (excluding clause (c) thereof) for such
Payment Date.
"Receivables Servicing Agreement" shall mean either of the Ford
Credit Servicing Agreement or the Huntington Purchase and Servicing Agreement.
"Receivables Servicing Fee Rate" shall mean 1.00%.
"Record Date" shall mean, with respect to any Payment Date or
Prepayment Date and any Book-Entry Security, the close of business on the day
prior to such Payment Date or Prepayment Date or, with respect to any
Definitive Note or Definitive Certificate, the last day of the month preceding
the month in which such Payment Date or Prepayment Date occurs.
"Registered Noteholder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Registration Statement" shall mean Registration Statement No.
333-101904 filed by the Depositor with the Commission in the form in which it
became effective on March 13, 2003.
"Regular Allocation of Principal" shall mean, with respect to any
Payment Date, an amount not less than zero equal to the excess, if any, of (a)
Pool Balance (excluding Liquidated Receivables) as of the beginning of the
beginning of the related Collection Period minus the Pool Balance (excluding
Liquidated Receivables) as of the end of the related Collection Period over
(b) the sum of the First Allocation of Principal for such Payment Date, the
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Second Allocation of Principal for such Payment Date and the Third Allocation
of Principal for such Payment Date, minus (b) the excess, if any, of (i) the
aggregate principal amount of the receivables (excluding Liquidated
Receivables) as of the beginning of the related Collection Period minus the
aggregate outstanding principal amount of the notes as of the beginning of the
related Collection Period over (iii) the Target Overcollateralization Level
for that Payment Date.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Note" shall have the meaning specified in
Section 2.2 of the Indenture.
"Representative" shall mean ▇▇▇▇▇▇▇, Sachs & Co., as representative
of the several Underwriters.
"Rule 144A Global Note" shall have the meaning specified in Section
2.2 of the Indenture.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of the Closing Date, among the Issuer, the Depositor, the
Indenture Trustee and the Servicer.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" shall mean the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended, modified or supplemented from time to time, and any successor law
thereto.
"Schedule of Receivables" shall mean the list of Receivables attached
as Schedule A to the Sale and Servicing Agreement and the Indenture (which
Schedules may be in the form of microfiche, disk or other means acceptable to
the Trustee).
"Scheduled Payment" shall mean, for any Receivable, the scheduled
monthly payment amount indicated in such Receivable as required to be paid by
the Obligor in such Collection Period (without giving effect to deferments of
payments pursuant to Section 3.2 of the Sale and Servicing Agreement or any
rescheduling in any insolvency or similar proceedings).
"Second Allocation of Principal" shall mean, with respect to any
Payment Date, an amount not less than zero equal to (1) the excess, if any, of
(x) the aggregate principal balance of the Class A Notes and the Class B Notes
as of the preceding Payment Date (after giving effect to any principal
payments made on the Class A Notes and the Class B Notes on such preceding
Payment Date) or, in the case of the initial Payment Date, the Closing Date,
over (y) the Pool Balance as of the end of the related Collection Period minus
(2) the First Allocation of Principal for such Payment Date; provided,
however, that that the Second Allocation of Principal shall not exceed the sum
of the aggregate outstanding principal amount of the Class A Notes and the
Class B Notes on such Payment Date (after giving effect to any principal
payments made on the Class A Notes and the Class B Notes on such Payment Date
in respect of the First Allocation of Principal, if any); provided, further,
however, that the Second Allocation of Principal for any Payment Date on or
after the Final Scheduled Payment Date for any class of Class B Notes shall
not be less than the amount such is necessary to reduce the Outstanding Amount
of such class of Class B Notes to zero.
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"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Securities" shall mean the Notes and the Certificates, collectively.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholder" shall mean a Noteholder or a Certificateholder, as
applicable.
"Seller" shall mean GS Whole Loan Trust, a Delaware statutory trust,
and its successors.
"Sequential Principal Payment Trigger Percentage" shall mean, with
respect to each Determination Date occurring within the time periods set forth
below, the percentage corresponding thereto:
Determination Date Percentage
------------------ ----------
March 2004 through and including 1.50%
January 2005
February 2005 through and including 2.25%
January 2006
February 2006 and thereafter 2.50%
"Servicer" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company as the servicer
of the Receivables under the Sale and Servicing Agreement, and each successor
to thereto (in the same capacity) pursuant to Section 7.1 of the Sale and
Servicing Agreement.
"Servicing Fee" shall mean, with respect to a Collection Period, a
fee payable to the Servicer equal to one-twelfth of the Servicing Fee Rate
multiplied by the aggregate Principal Balance of the Receivables as of the
first day of that Collection Period.
"Servicing Fee Rate" shall mean 1.02%.
"Similar Law" shall mean a federal, state or local law that imposes
requirements similar to Title I of ERISA or Section 4975 of the Code.
"Simple Interest Method" shall mean the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the amount of interest
accrued from the date of the preceding payment to the date of the current
payment.
"Simple Interest Receivable" shall mean any Receivable under which
the portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
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"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its successor in interest.
"State" shall mean any state or commonwealth of the United States of
America, or the District of Columbia.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code ss. 3801 et seq., as amended.
"Successor Servicer" shall mean an institution appointed as successor
Servicer pursuant to Section 7.1 of the Sale and Servicing Agreement.
"Supplemental Servicing Fees" means any late fees, NSF check fees or
other similar amounts entitled to be retained by the Receivables Servicers
"Target Overcollateralization Level" shall mean, on any Payment Date,
the greater of (a) 2.00% of the Pool Balance as of the end of the related
Collection Period and (b) 1.00% of the Original Pool Balance.
"Temporary Regulation S Global Note" shall have the meaning specified
in Section 2.2 of the Indenture.
"Third Allocation of Principal" shall mean, with respect to any
Payment Date, an amount not less than zero equal to (1) the excess, if any, of
(x) the aggregate principal balance of the Class A Notes, the Class B Notes
and the Class C Notes as of the preceding Payment Date (after giving effect to
any principal payments made on the Class A Notes, the Class B Notes and the
Class C Notes on such preceding Payment Date) or, in the case of the initial
Payment Date, the Closing Date, over (y) the Pool Balance as of the end of the
related Collection Period minus (2) the First Allocation of Principal and the
Second Allocation of Principal for such Payment Date; provided, however, that
that the Third Allocation of Principal shall not exceed the sum of the
aggregate outstanding principal amount of the Class A Notes, the Class B Notes
and the Class C Notes on such Payment Date (after giving effect to any
principal payments made on the Class A Notes, the Class B Notes and the Class
C Notes on such Payment Date in respect of the First Allocation of Principal
and Second Allocation of Principal, if any); provided, further, however, that
the Third Allocation of Principal for any Payment Date on or after the Final
Scheduled Payment Date for any class of Class C Notes shall not be less than
the amount such is necessary to reduce the Outstanding Amount of such class of
Class C Notes to zero.
"Three-Month Annualized Net Loss Ratio" shall mean, with respect to
any date of determination, the product of (x) twelve and (y) the average of
the Monthly Net Loss Ratios for each of the three preceding Collection Periods
(or if prior to three months from the Closing Date, the number of whole
Collection Periods since the Cut-off Date). For the purpose of this
definition, the "Monthly Net Loss Ratio" means, for the last day of any
Collection Period, a fraction expressed as a percentage, the numerator of
which is equal to the Net Liquidation Losses for that Collection Period and
the denominator of which is equal to the aggregate principal balance of the
Receivables as of the first day of that Collection Period.
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"Transferred Assets" shall mean, collectively, (i) the Receivables,
(ii) all Collections received after the Cut-off Date, (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles,
(iv) the Receivable Files, (v) the rights of the Depositor under the
Receivables Purchase Agreement and the Huntington Assignment, Assumption and
Recognition Agreement and (vi) all proceeds of the foregoing.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust Accounts" shall mean the Collection Account, the Principal
Distribution Account and the Certificate Distribution Account.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement
of the Issuer dated as of the Closing Date by and between the Depositor and
the Owner Trustee, as amended and/or restated from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, collectively, (i) the Transferred
Assets, (ii) the Trust Accounts and all amounts, securities, investments,
investment property and other property deposited in or credited to any of the
foregoing, all security entitlements relating to the foregoing and all
proceeds thereof, (iii) all of the Issuer's rights under the Sale and
Servicing Agreement and the Guaranty and (iv) all proceeds of any of the
foregoing.
"Trustee Officer" shall mean, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee with
direct responsibility for the administration of the Indenture and the other
Basic Documents on behalf of the Indenture Trustee 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
and, with respect to the Owner Trustee, any officer within the Corporate Trust
Office of the Owner Trustee with direct responsibility for the administration
of the Trust Agreement and the other Basic Documents on behalf of the Owner
Trustee.
"UCC" shall mean the Uniform Commercial Code as in effect in any
relevant jurisdiction.
"Underwriters" shall mean the underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
February 9, 2004 between the Depositor and the Representative.
"Underwritten Securities" shall mean the Class A Notes, Class B Notes
and Class C Notes.
"Unmatured Event of Default" shall mean an event which, with the
giving of notice or lapse of time or both, would constitute an Event of
Default.
"U.S. Person" shall have the meaning ascribed to such term in
Regulation S.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association, a
national banking association.
25