EXHIBIT 4.4.8
FORM OF TRUST AGREEMENT (CREDIT CARD SECURITIES)
FORM OF TRUST AGREEMENT
between
GS Mortgage Securities Corp. ,
as Company,
and
[---------------------]
as Owner Trustee
Dated as of _________________
TABLE OF CONTENTS
ARTICLE I Definitions........................................................................1
SECTION 1.01. Defined Terms...................................................................1
SECTION 1.02. Other Definitional Provisions...................................................3
ARTICLE II Organization.......................................................................4
SECTION 2.01. Name............................................................................4
SECTION 2.02. Office..........................................................................4
SECTION 2.03. Purposes and Powers.............................................................4
SECTION 2.04. Appointment of Owner Trustee....................................................5
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate..............................5
SECTION 2.06. Declaration of Trust............................................................5
SECTION 2.07. Liability of the Owners.........................................................6
SECTION 2.08. Title to Trust Property.........................................................6
SECTION 2.09. Situs of Trust..................................................................6
SECTION 2.10. Representations and Warranties of the Company...................................6
SECTION 2.11. Maintenance of the Demand Note..................................................7
SECTION 2.12. Federal Income Tax Allocations..................................................7
ARTICLE III Trust Certificates and Transfer of Interests.......................................8
SECTION 3.01. Initial Ownership...............................................................8
SECTION 3.02. The Trust Certificates..........................................................8
SECTION 3.03. Authentication of Trust Certificates............................................9
SECTION 3.04. Registration of Transfer and Exchange of Trust Certificates.....................9
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates........................10
SECTION 3.06. Persons Deemed Owners..........................................................10
SECTION 3.07. Access to List of Certificateholders' Names and Addresses......................10
SECTION 3.08. Maintenance of Office or Agency................................................10
SECTION 3.09. Appointment of Paying Agent....................................................11
SECTION 3.10. Ownership by Company of Trust Certificates.....................................11
SECTION 3.11. Book-Entry Trust Certificates..................................................11
SECTION 3.12. Notices to Clearing Agency.....................................................12
SECTION 3.13. Definitive Trust Certificates..................................................12
ARTICLE IV Actions by Owner Trustee..........................................................13
SECTION 4.01. Prior Notice to Owners with Respect to Certain Matters.........................13
SECTION 4.02. Action by Owners with Respect to Certain Matters...............................13
SECTION 4.03. Action by Owners with Respect to Bankruptcy....................................14
SECTION 4.04. Restrictions on Owners' Power..................................................14
SECTION 4.05. Majority Control...............................................................14
ARTICLE V Application of Trust Funds; Certain Duties........................................14
SECTION 5.01. Establishment of Trust Account.................................................14
SECTION 5.02. Application of Trust Funds.....................................................14
SECTION 5.03. Method of Payment..............................................................15
SECTION 5.04. No Segregation of Moneys; No Interest..........................................15
SECTION 5.05. Accounting and Reports to the Noteholders, Owners, the
Internal Revenue Service and Others...........................................15
SECTION 5.06. Signature on Returns; Tax Matters Partner......................................16
ARTICLE VI Authority and Duties of Owner Trustee.............................................16
SECTION 6.01. General Authority..............................................................16
SECTION 6.02. General Duties.................................................................16
SECTION 6.03. Action upon Instruction........................................................16
SECTION 6.04. No Duties Except as Specified in this Agreement or in Instructions.............17
SECTION 6.05. No Action Except Under Specified Documents or Instructions.....................17
SECTION 6.06. Restrictions...................................................................18
ARTICLE VII Concerning the Owner Trustee......................................................19
SECTION 7.01. Acceptance of Trust and Duties.................................................19
SECTION 7.02. Furnishing of Documents........................................................20
SECTION 7.03. Representations and Warranties.................................................20
SECTION 7.04. Reliance; Advice of Counsel....................................................20
SECTION 7.05. Not Acting in Individual Capacity..............................................21
SECTION 7.06. Owner Trustee Not Liable for Trust Certificates or Receivables.................21
SECTION 7.07. Owner Trustee May Own Trust Certificates and Notes.............................21
ARTICLE VIII Compensation of Owner Trustee.....................................................22
SECTION 8.01. Owner Trustee's Fees and Expenses..............................................22
SECTION 8.02. Indemnification................................................................22
SECTION 8.03. Payments to the Owner Trustee..................................................22
ARTICLE IX Termination of Trust Agreement....................................................22
SECTION 9.01. Termination of Trust Agreement.................................................22
SECTION 9.02. Dissolution upon Bankruptcy of the Company.....................................23
ARTICLE X Successor Owner Trustees and Additional Owner Trustees............................24
SECTION 10.01. Eligibility Requirements for Owner Trustee.....................................24
SECTION 10.02. Resignation or Removal of Owner Trustee........................................24
SECTION 10.03. Successor Owner Trustee........................................................25
SECTION 10.04. Merger or Consolidation of Owner Trustee.......................................25
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee..................................25
ARTICLE XI Miscellaneous.....................................................................27
SECTION 11.01. Supplements and Amendments.....................................................27
SECTION 11.02. No Legal Title to Owner Trust Estate in Owners.................................28
SECTION 11.03. Limitations on Rights of Others................................................28
SECTION 11.04. Notices........................................................................28
SECTION 11.05. Severability...................................................................28
SECTION 11.06. Separate Counterparts..........................................................28
SECTION 11.07. Successors and Assigns.........................................................29
SECTION 11.08. Covenants of the Company.......................................................29
SECTION 11.09. No Petition....................................................................29
SECTION 11.10. No Recourse....................................................................29
SECTION 11.11. Headings.......................................................................29
SECTION 11.12. GOVERNING LAW..................................................................30
SECTION 11.13. Trust Certificate Transfer Restrictions........................................30
EXHIBIT A - FORM OF TRUST CERTIFICATE..................................................................A-1
EXHIBIT B - CERTIFICATE OF TRUST OF [ ] AUTO RECEIVABLES TRUST 200........................B-1
EXHIBIT C - FORM OF CERTIFICATE DEPOSITORY AGREEMENT...................................................C-1
TRUST AGREEMENT dated as of _______________________, between GS
Mortgage Securities Corp., a Delaware corporation (the "Company"), and
________________, a Delaware banking corporation, as owner trustee (the
"Owner Trustee").
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Whenever used in this Agreement, the
following terms, unless the context requires otherwise, shall have the
meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall mean the Sale and Servicing Agreement, the
Indenture, the Note Depository Agreement, the Certificate Depository
Agreement and the other documents and certificates delivered in connection
therewith.
"Benefit Plan" shall have the meaning assigned to such term in
Section 11.13.
"Book-Entry Trust Certificate" shall mean a beneficial interest in
the Trust Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 3.11.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Certificate Depository Agreement" shall mean the agreement dated
________________, among the Trust, the Owner Trustee and The Depository
Trust Company, as the initial Clearing Agency, substantially in the form
attached hereto as Exhibit C, relating to the Trust Certificates, as the
same may be amended and supplemented from time to time.
"Certificate Distribution Account" shall have the meaning assigned
to such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of Trust,
substantially in the form of Exhibit B, filed for the Trust pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificate Owner" shall mean, with respect to a Book-Entry Trust
Certificate, the Person who is the beneficial owner of such Book-Entry
Trust Certificate, 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).
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" or "Holder" shall mean a Person in whose name
a Trust Certificate is registered.
"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.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and Treasury Regulations promulgated thereunder.
"Company" shall mean GS Mortgage Securities Corp., a Delaware
corporation, and any successor in interest.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located
at _____________________, or at such other address as the Owner Trustee may
designate by notice to the Owners and the Company, or the principal
corporate trust office of any successor Owner Trustee at the address
designated by such successor Owner Trustee by notice to the Owners and the
Company.
"Definitive Trust Certificates" shall have the meaning set forth
in Section 3.11.
"Demand Note" shall mean, in the case of _____________, the Demand
Note dated __________, from [Xxxxxxx Xxxxx & Co., Inc.] to
________________.
"ERISA" shall have the meaning assigned thereto in Section 11.13.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 8.02.
"Indenture" shall mean the Indenture dated as of _______________
between the Trust and ___________, as Indenture Trustee.
"Initial Certificate Balance" shall mean $________________.
"Note Depository Agreement" shall mean the agreement dated
________________, among the Trust, the Indenture Trustee and The Depository
Trust Company, as the initial Clearing Agency, relating to the Notes, as
the same may be amended and supplemented from time to time.
"Owner" shall mean each Holder of a Trust Certificate.
"Owner Trust Estate" shall mean all right, title and interest of
the Trust in and to the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement, all funds on deposit
from time to time in the Trust Accounts and the Certificate Distribution
Account and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and
Servicing Agreement.
"Owner Trustee" shall mean _______________, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09, which initially shall be
________________.
"Record Date" shall mean, with respect to any Distribution Date,
the close of business on the day immediately preceding such Distribution
Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of ________________, among the Trust, as issuer,
[!!!!!], as seller, and ____________, as servicer, as the same may be
amended or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Treasury Regulations" shall mean regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificate Owner in the Trust, substantially in
the form attached hereto as Exhibit A.
"Underwriter" shall mean that underwriter named in and a party to
the Certificate Underwriting Agreement dated _______________, with the
Company, pursuant to which the Trust Certificates will be offered publicly.
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Sale and Servicing Agreement or,
if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined herein or therein,
shall have the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be known as "[
] Auto Receivables Trust 200_-_", in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Owners
and the Company.
SECTION 2.03. Purposes and Powers.
(a) The purpose of the Trust is to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the
Trust Certificates pursuant to this Agreement and to sell the
Notes and the Trust Certificates;
(ii) with the proceeds of the sale of the Notes and the
Trust Certificates, to purchase the Receivables, to fund the
Reserve Account and to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance to the
Company pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the Indenture and to hold,
manage and distribute to the Owners pursuant to the terms of the
Sale and Servicing Agreement any portion of the Owner Trust
Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Owner Trust Estate and the making of
distributions to the Owners and the Noteholders.
The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by
the terms of this Agreement or the Basic Documents.
SECTION 2.04. Appointment of Owner Trustee. The Company hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate.
The Company hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Company, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Owner Trust Estate and shall be deposited in the Certificate Distribution
Account. The Company shall pay organizational expenses of the Trust as they
may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject
to the conditions set forth herein for the use and benefit of the Owners,
subject to the obligations of the Trust under the Basic Documents. It is
the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute and that this Agreement constitute
the governing instrument of such business trust. It is the intention of the
parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets of the partnership
being the Receivables and other assets held by the Trust, the partners of
the partnership being the Certificateholders, and the Notes being debt of
the partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes.
Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. SECTION 2.07. Liability
of the Owners.
(a) The Company shall be liable directly to and will indemnify any
injured party for all losses, claims, damages, liabilities and expenses of
the Trust (including Expenses, to the extent not paid out of the Owner
Trust Estate) to the extent that the Company would be liable if the Trust
were a partnership under the Delaware Revised Uniform Limited Partnership
Act in which the Company were a general partner; provided, however, that
the Company shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Trust Certificates
or by a Noteholder in the capacity of an investor in the Notes. In
addition, any third party creditors of the Trust (other than in connection
with the obligations described in the preceding sentence for which the
Company shall not be liable) shall be deemed third party beneficiaries of
this paragraph. The obligations of the Company under this paragraph shall
be evidenced by the Trust Certificates described in Section 3.10, which for
purposes of the Business Trust Statute shall be deemed to be a separate
class of Trust Certificates from all other Trust Certificates issued by the
Trust; provided that the rights and obligations evidenced by all Trust
Certificates, regardless of class, shall, except as provided in this
Section, be identical.
(b) No Owner, other than to the extent set forth in paragraph (a)
above, shall have any personal liability for any liability or obligation of
the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all the
Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title
to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of New York. The Trust shall not have any employees
in any state other than Delaware; provided, however, that nothing herein
shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust
only in Delaware or New York, and payments will be made by the Trust only
from Delaware or New York. The only office of the Trust will be at the
Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Owner Trustee that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, with the 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) The Company is duly qualified to do business as a
foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which
the ownership or lease of its property or the conduct of its
business shall require such qualifications.
(iii) The Company has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Company
has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trust, and the
Company has duly authorized such sale and assignment and deposit
to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been
duly authorized by the Company by all necessary corporate action.
(iv) The Company has the full power and authority to
purchase the Trust Certificates that the Company has agreed to
purchase pursuant to Section 3.10.
(v) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Company, or any indenture, agreement or other instrument to
which the Company is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement
or other instrument (other than pursuant to the Basic Documents);
nor violate any law or, to the best of the Company's knowledge,
any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Company or its properties.
(vi) There are no proceedings or investigations pending or,
to the Company's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its
properties: (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination
or ruling that might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement.
SECTION 2.11. Maintenance of the Demand Note. To the fullest
extent permitted by applicable law, the Company agrees that it shall not
sell, convey, pledge, transfer or otherwise dispose of the Demand Note.
SECTION 2.12. Federal Income Tax Allocations. Net income of the
Trust for any month as determined for federal income tax purposes (and each
item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated:
(a) among the Certificate Owners as of the first day following the
end of such month, in proportion to their ownership of principal amount of
Trust Certificates on such date, net income in an amount up to the sum of
(i) the Certificateholders' Monthly Interest Distributable Amount for such
month, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distributable Amount for the preceding Distribution Date over the
amount in respect of interest that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, to the extent
permitted by law, at the Pass-Through Rate from such preceding Distribution
Date through the current Distribution Date, (iii) the portion of the market
discount on the Receivables accrued during such month that is allocable to
the excess, if any, of the initial aggregate principal amount of the Trust
Certificates over their initial aggregate issue price, (iv) any amount
expected to be distributed to the Certificateholders pursuant to Section
5.07(g) of the Sale and Servicing Agreement (to the extent not previously
allocated pursuant to this clause), and (v) any other amounts of income
payable to the Certificateholders for such month; such sum to be reduced by
any amortization by the Trust of premium on Receivables that corresponds to
any excess of the issue price of Certificates over their principal amount;
and
(b) to the Company, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for
the allocations described in clause (a) above, subsequent net income shall
first be allocated to make up such shortfall before being allocated as
provided in the preceding sentence. Net losses of the Trust, if any, for
any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof)
shall be allocated to the Company to the extent the Company is reasonably
expected to bear the economic burden of such net losses, and any remaining
net losses shall be allocated among the Certificate Owners as of the first
Record Date following the end of such month in proportion to their
ownership of principal amount of Trust Certificates on such Record Date.
The Company is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Company or to the
Certificate Owners, or as otherwise required by the Code.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.01. Initial Ownership. Upon the formation of the Trust
by the contribution by the Company pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Company shall be the sole
beneficiary of the Trust.
SECTION 3.02. The Trust Certificates. The Trust Certificates shall
be issued in minimum denominations of $10,000 and in integral multiples of
$,0001 in excess thereof; provided, however, that the Trust Certificates
issued to the Company pursuant to Section 3.10 may be issued in such
denomination as required to include any residual amount. The Trust
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee. Trust
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the
benefit of this Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Trust Certificates or did not hold such offices at the
date of authentication and delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's
acceptance of a Trust Certificate duly registered in such transferee's name
pursuant to Section 3.04.
SECTION 3.03. Authentication of Trust Certificates. On the Closing
Date, the Owner Trustee shall cause the Trust Certificates in an aggregate
principal amount equal to the Initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written
order of the Company, signed by its chairman of the board, its president,
any vice president, secretary or any assistant treasurer, without further
corporate action by the Company, in authorized denominations. No Trust
Certificate shall entitle its Holder to any benefit under this Agreement or
be valid for any purpose unless there shall appear on such Trust
Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Owner Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Trust
Certificate shall have been duly authenticated and delivered hereunder. All
Trust Certificates shall be dated the date of their authentication.
SECTION 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.08, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates as herein
provided. _______________ shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust
Certificate at the office or agency maintained pursuant to Section 3.08,
the Owner Trustee shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Trust
Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Owner Trustee or any authenticating
agent. At the option of a Holder, Trust Certificates may be exchanged for
other Trust Certificates of authorized denominations of a like aggregate
amount upon surrender of the Trust Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Trust Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by
the Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer
or exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the
Owner Trustee shall not make, and the Certificate Registrar shall not
register transfers or exchanges of, Trust Certificates for a period of 15
days preceding the due date for any payment with respect to the Trust
Certificates.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If: (a) any mutilated Trust Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate and (b) there shall be delivered to the Certificate Registrar
and the Owner Trustee such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such
Trust Certificate has been acquired by a bona fide purchaser, the Owner
Trustee on behalf of the Trust shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Certificate, a new Trust Certificate of like tenor and denomination.
In connection with the issuance of any new Trust Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of
a Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose
name any Trust Certificate is registered in the Certificate Register as the
owner of such Trust Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar or any Paying Agent shall be
bound by any notice to the contrary.
SECTION 3.07. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Company, within 15 days after receipt by the Owner Trustee
of a written request therefor from the Servicer or the Company, a list, in
such form as the Servicer or the Company may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Certificateholders or one or more Holders of Trust
Certificates evidencing not less than 25% of the Certificate Balance apply
in writing to the Owner Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Trust Certificates and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the Company,
the Company, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information is derived.
SECTION 3.08. Maintenance of Office or Agency. The Owner Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office
or offices or agency or agencies where Trust Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Owner Trustee in respect of the Trust Certificates
and the Basic Documents may be served. The Owner Trustee initially
designates ______________ as its office for such purposes. The Owner
Trustee shall give prompt written notice to the Company and to the
Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.09. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.02 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material
respect. The Paying Agent initially shall be _______________, and any
co-paying agent chosen by _______________ and acceptable to the Owner
Trustee. _______________ shall be permitted to resign as Paying Agent upon
30 days' written notice to the Owner Trustee. In the event that
_______________ shall no longer be the Paying Agent, the Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or
trust company). The Owner Trustee shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Owner Trustee
that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
The Paying Agent shall return all unclaimed funds to the Owner Trustee and
upon removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections
7.01, 7.03, 7.04 and 8.01 shall apply to the Owner Trustee also in its role
as Paying Agent for so long as the Owner Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.10. Ownership by Company of Trust Certificates. The
Company shall on the Closing Date purchase from the Underwriter Trust
Certificates representing at least 1% of the Initial Certificate Balance
and shall thereafter retain beneficial and record ownership of Trust
Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest
of the Company below 1% of the Certificate Balance shall be void. The Owner
Trustee shall cause any Trust Certificate issued to the Company to contain
a legend stating "THIS CERTIFICATE IS NON-TRANSFERABLE AS DESCRIBED IN
SECTION 3.10 OF THE TRUST AGREEMENT".
SECTION 3.11. Book-Entry Trust Certificates. The Trust
Certificates, upon original issuance, will be issued in the form of a
typewritten Trust Certificate or Trust Certificates representing Book-Entry
Trust Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust; provided, however,
that one Definitive Trust Certificate may be issued to the Company pursuant
to Section 3.10. Such Trust Certificate or Trust Certificates shall
initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a definitive Trust Certificate representing such Certificate
Owner's interest in such Trust Certificate, except as provided in Section
3.13. Unless and until definitive, fully registered Trust Certificates (the
"Definitive Trust Certificates") have been issued to Certificate Owners
pursuant to Section 3.13:
(a) The provisions of this Section shall be in full force and
effect;
(b) The Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of principal of and interest on the Trust
Certificates and the giving of instructions or directions hereunder) as the
sole Holder of the Trust Certificates and shall have no obligation to the
Certificate Owners;
(c) To the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this Section
shall control;
(d) The rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Certificate
Depository Agreement, unless and until Definitive Trust Certificates are
issued pursuant to Section 3.13, the initial Clearing Agency will make
book- entry transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the Trust
Certificates to such Clearing Agency Participants; and
(e) Whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust
Certificates evidencing a specified percentage of the Certificate Balance,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Trust Certificates and has delivered such instructions to
the Owner Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or
other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Trust Certificates shall have been
issued to Certificate Owners pursuant to Section 3.13, the Owner Trustee
shall give all such notices and communications specified herein to be given
to Certificateholders to the Clearing Agency, and shall have no obligations
to the Certificate Owners.
SECTION 3.13. Definitive Trust Certificates. If: (i) the Company
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the Trust Certificates and the Company is unable to locate a qualified
successor, (ii) the Company at its option advises the Owner Trustee in
writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicer Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Certificate Balance advise the
Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the
Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of such event and of the
availability of the Definitive Trust Certificates to Certificate Owners
requesting the same. Upon surrender to the Owner Trustee of the typewritten
Trust Certificate or Trust Certificates representing the Book-Entry Trust
Certificates by the Clearing Agency, accompanied by registration
instructions, the Owner Trustee shall execute and authenticate the
Definitive Trust Certificates in accordance with the instructions of the
Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Trust Certificates, the Owner
Trustee shall recognize the Holders of the Definitive Trust Certificates as
Certificateholders. The Definitive Trust Certificates shall be printed,
lithographed or engraved or may be produced in any other manner that is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
ARTICLE IV
Actions by Owner Trustee
SECTION 4.01. Prior Notice to Owners with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not
take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Owners shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such Owners
have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Owners; or
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by
the Note Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable.
SECTION 4.02. Action by Owners with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of
the Owners, to (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Section 8.01 thereof or (b) except as expressly
provided in the Basic Documents, sell the Receivables after the termination
of the Indenture. The Owner Trustee shall take the actions referred to in
the preceding sentence only upon written instructions signed by the Owners.
SECTION 4.03. Action by Owners with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Owners and the delivery to the Owner Trustee by each such Owner of a
certificate certifying that such Owner reasonably believes that the Trust
is insolvent.
SECTION 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if
such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Section 2.03, nor shall the Owner Trustee be obligated
to follow any such direction, if given.
SECTION 4.05. Majority Control. Except as expressly provided
herein, any action that may be taken by the Owners under this Agreement may
be taken by the Holders of Trust Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein,
any written notice to the Owners delivered pursuant to this Agreement shall
be effective if signed by Holders of Trust Certificates evidencing not less
than a majority of the Certificate Balance at the time of the delivery of
such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account. The Owner Trustee,
for the benefit of the Certificateholders, shall establish and maintain in
the name of the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. Except as otherwise expressly provided
herein, the Certificate Distribution Account shall be under the sole
dominion and control of the Owner Trustee for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Owner Trustee (or the Company
on behalf of the Owner Trustee, if the Certificate Distribution Account is
not then held by the Owner Trustee or an affiliate thereof) shall within 10
Business Days (or such longer period not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new Certificate
Distribution Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments to such new Certificate Distribution Account.
SECTION 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee will distribute
to Certificateholders, on a pro rata basis, amounts deposited in the
Certificate Distribution Account pursuant to Sections 5.06 and 5.07 of the
Sale and Servicing Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement or statements provided to the Owner
Trustee by the Servicer pursuant to Section 5.08 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to an Owner, such tax shall
reduce the amount otherwise distributable to the Owner in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Owners sufficient funds for the
payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such
tax in appropriate proceedings and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of
any withholding tax imposed with respect to an Owner shall be treated as
cash distributed to such Owner at the time it is withheld by the Trust and
remitted to the appropriate taxing authority. If there is a possibility
that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Owner), the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this paragraph (c).
SECTION 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer in immediately available funds to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's Trust
Certificates in the aggregate evidence a denomination of not less than
$____________, or, if not, by check mailed to such Certificateholder at the
address of such holder appearing in the Certificate Register.
SECTION 5.04. No Segregation of Moneys; No Interest. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.05. Accounting and Reports to the Noteholders, Owners,
the Internal Revenue Service and Others. The Owner Trustee shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar
year basis and the accrual method of accounting, (b) deliver to each Owner,
as may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each
Owner to prepare its federal and state income tax returns, (c) file such
tax returns relating to the Trust (including a partnership information
return, IRS Form 1065) and make such elections as from time to time may be
required or appropriate under any applicable state or federal statute or
any rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax purposes, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.02(c) with respect to income or distributions to
Owners. The Owner Trustee shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect
to the Receivables. The Owner Trustee shall not make the election provided
under Section 754 of the Code.
SECTION 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust unless applicable law requires an Owner to sign such
documents, in which case such documents shall be signed by the Company.
(b) The Company shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01. General Authority. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Trust
is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to
be a party, in each case, in such form as the Company shall approve, as
evidenced conclusively by the Owner Trustee's execution thereof. In
addition to the foregoing, the Owner Trustee is authorized, but shall not
be obligated, to take all actions required of the Trust pursuant to the
Basic Documents. The Owner Trustee is further authorized from time to time
to take such action as the Company recommends with respect to the Basic
Documents.
SECTION 6.02. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Basic
Documents to which the Trust is a party and to administer the Trust in the
interest of the Owners, subject to the Basic Documents and in accordance
with the provisions of this Agreement.
SECTION 6.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the
Basic Documents, the Owners may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at
any time by written instruction of the Owners pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances)
to the Owners requesting instructions as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction received from the Owners, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably
may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the Basic
Documents as it shall deem to be in the best interests of the Owners, and
shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document, or
any such provision is ambiguous as to its application or is, or appears to
be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Owners requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good faith in accordance
with any such instruction received, the Owner Trustee shall not be liable
with respect to any such action or inaction to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action
not inconsistent with this Agreement or the Basic Documents as it shall
deem to be in the best interests of the Owners, and shall have no liability
to any Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose
of, or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Agreement or
any Basic Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust
or to record this Agreement or any Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly
take all action that may be necessary to discharge any liens on any part of
the Owner Trust Estate that result from actions by, or claims against, the
Owner Trustee that are not related to the ownership or the administration
of the Owner Trust Estate.
SECTION 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred
upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with
the Basic Documents and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee,
would result in the Trust's becoming taxable as a corporation for federal
income tax purposes. The Owners shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VII
Concerning the Owner Trustee
SECTION 7.01. Acceptance of Trust and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts, but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms
of the Basic Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or
(ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made by a Trust Officer of the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of any Owner transmitted pursuant to the terms hereof;
(c) No provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of its rights or powers hereunder or
under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due execution
hereof by the Company, or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for or
in respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Trust Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Owner, other than as expressly
provided for herein or expressly agreed to in the Basic Documents;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Company, the Indenture Trustee or the Servicer under any
of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be performed by the
Indenture Trustee under the Indenture or the Servicer or the Company under
the Sale and Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Owners, unless such Owners have offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any
such act.
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Owners promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to
the Owner Trustee under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Company, for the benefit of the
Owners, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) None of the execution and delivery by it of this Agreement,
the consummation by it of the transactions contemplated hereby or
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound.
SECTION 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or
the Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been
selected by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled Persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or
other such Persons and not contrary to this Agreement or any Basic
Document.
SECTION 7.05. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created
____________________ acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Trust Certificates or
Receivables. The recitals contained herein and in the Trust Certificates
(other than the signature and countersignature of the Owner Trustee on the
Trust Certificates) shall be taken as the statements of the Company, and
the Owner Trustee assumes no responsibility for the correctness thereof.
The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Basic Document or of the Trust
Certificates (other than the signature and countersignature of the Owner
Trustee on the Trust Certificates) or the Notes, or of any Receivable or
any related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Owner Trust Estate or its ability to generate the
payments to be distributed to Certificateholders under this Agreement or to
Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of
any Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Company or the Servicer with any warranty
or representation made under any Basic Document or in any related document
or the accuracy of any such warranty or representation, or any action of
the Indenture Trustee or the Servicer or any subservicer taken in the name
of the Owner Trustee.
SECTION 7.07. Owner Trustee May Own Trust Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of Trust Certificates or Notes and may deal with the
Company, the Indenture Trustee and the Servicer in banking transactions
with the same rights it would have if it were not Owner Trustee.
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Company and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Company for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.02. Indemnification. The Company shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, "Expenses")
which may at any time be imposed on, incurred by or asserted against the
Owner Trustee or any Indemnified Party in any way relating to or arising
out of this Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Company shall not be liable
for or required to indemnify an Indemnified Party from and against Expenses
arising or resulting from any of the matters described in the third
sentence of Section 7.01. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject to the approval of
the Company, which approval shall not be unreasonably withheld.
SECTION 8.03. Payments to the Owner Trustee. Any amounts paid to
the Owner Trustee pursuant to this Article VIII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect: (i) upon the final
distribution by the Owner Trustee of all moneys or other property or
proceeds of the Owner Trust Estate in accordance with the terms of the
Indenture, the Sale and Servicing Agreement and Article V or (ii) at the
time provided in Section 9.02. The bankruptcy, liquidation, dissolution,
death or incapacity of any Owner, other than the Company as described in
Section 9.02, shall not (x) operate to terminate this Agreement or the
Trust or (y) entitle such Owner's legal representatives or heirs to claim
an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in Section 9.01(a), none of the Company or
any Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to Certificate
holders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 9.01(c) of the Sale
and Servicing Agreement, stating (i) the Distribution Date upon or with
respect to which final payment of the Trust Certificates shall be made upon
presentation and surrender of the Trust Certificates at the office of the
Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and
surrender of the Trust Certificates at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying
Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Trust Certificates, the Paying Agent
shall cause to be distributed to Certificateholders amounts distributable
on such Distribution Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not
surrender their Trust Certificates for cancellation within six months after
the date specified in the above mentioned written notice, the Owner Trustee
shall give a second written notice to the remaining Certificateholders to
surrender their Trust Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the Trust Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Trust Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to
the Company, subject to applicable laws with respect to escheat of funds.
(d) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust
Statute.
SECTION 9.02. Dissolution upon Bankruptcy of the Company. In the
event that an Insolvency Event shall occur with respect to the Company,
this Agreement shall be terminated in accordance with Section 9.01, 90 days
after the date of such Insolvency Event, unless, before the end of such
90-day period, the Owner Trustee shall have received written instructions
from (a) Holders of Certificates (other than the Company) representing more
than 50% of the Certificate Balance (not including the Certificate Balance
of the Trust Certificates held by the Company) and (b) Holders (as defined
in the Indenture) of the Notes representing more than 50% of the
Outstanding Amount thereof, to the effect that each such party disapproves
of the liquidation of the Receivables and termination of the Trust.
Promptly after the occurrence of any Insolvency Event with respect to the
Company, (A) the Company shall give the Indenture Trustee and the Owner
Trustee written notice of such Insolvency Event, (B) the Owner Trustee
shall, upon receipt of such written notice from the Company, give prompt
written notice to the Certificateholders and the Indenture Trustee of the
occurrence of such event and (C) the Indenture Trustee shall, upon receipt
of written notice of such Insolvency Event from the Owner Trustee or the
Company, give prompt written notice to the Noteholders of the occurrence of
such event; provided, however, that any failure to give a notice required
by this sentence shall not prevent or delay, in any manner, the termination
of the Trust pursuant to the first sentence of this Section 9.02. Upon
termination pursuant to this Section, the Owner Trustee shall direct the
Indenture Trustee promptly to sell the assets of the Trust (other than the
Trust Accounts and the Certificate Distribution Account) in a commercially
reasonable manner and on commercially reasonable terms. The proceeds of
such a sale of the assets of the Trust shall be treated as collections made
under the Sale and Servicing Agreement.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation satisfying the provisions
of Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) a rating of at least
Baa3 by Xxxxx'x. If such corporation shall publish reports of condition at
least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Company. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy
to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Company, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Company may remove the Owner Trustee.
If the Company shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Company shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee, and shall pay all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Company shall provide
notice of such resignation or removal of the Owner Trustee to each of the
Rating Agencies.
SECTION 10.03. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Company and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the
successor Owner Trustee all documents, statements and monies held by it
under this Agreement; and the Company and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Company shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Company shall fail to mail such notice within 10 days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense
of the Company.
SECTION 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate
trust business of the Owner Trustee, shall be the successor of the Owner
Trustee hereunder, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, that such corporation shall be
eligible pursuant to Section 10.01 and, provided, further, that the Owner
Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Owner Trust Estate or any Financed Vehicle may at the time
be located, the Company and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Company and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust or any part thereof and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Company and the Owner Trustee may
consider necessary or desirable. If the Company shall not have joined in
such appointment within 15 days after the receipt by it of a request to do
so, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as successor Owner Trustee under Section
10.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required under Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the Owner Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) The Company and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Company.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor co-trustee
or separate trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This Agreement may be
amended by the Company and the Owner Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interest of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Company and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders (as defined in the Indenture) of
Notes evidencing not less than a majority of the Outstanding Amount of the
Notes and the consent of the Holders of Certificates evidencing not less
than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables
or distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Notes and the Certificate
Balance required to consent to any such amendment, without the consent of
the holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and
each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders,
Noteholders or the Indenture Trustee pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel to the effect that such amendment is authorized
or permitted by the Basic Documents and that all conditions precedent in
the Basic Documents for the execution and delivery thereof by the Issuer or
the Owner Trustee, as the case may be, have been satisfied.
SECTION 11.02. No Legal Title to Owner Trust Estate in Owners. The
Owners shall not have legal title to any part of the Owner Trust Estate.
The Owners shall be entitled to receive distributions with respect to their
undivided ownership interest therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Owners to and in their ownership interest in the Owner
Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to
it of legal title to any part of the Owner Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Company, the Owners, and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in
this Agreement (other than Section 2.07 hereof), whether express or
implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Owner
Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office;
and if to the Company, addressed to _______________, Attention
_______________; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder listed in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other
jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, each of the Company and its permitted assignees, the Owner Trustee and
its successors and each Owner and its successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by an Owner shall bind the successors and
assigns of such Owner.
SECTION 11.08. Covenants of the Company. In the event that (a) the
Certificate Balance shall be reduced by Realized Losses and (b) any
litigation with claims in excess of $1,000,000 to which the Company is a
party which shall be reasonably likely to result in a material judgment
against the Company that the Company will not be able to satisfy shall be
commenced by an Owner, during the period beginning nine months following
the commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in
a final judgment against the Company, such judgment has been satisfied),
the Company shall not pay any dividend to [ ], or make any distribution on
or in respect of its capital stock to [ ], or repay the principal amount of
any indebtedness of the Company held by [ ], unless: (i) after giving
effect to such payment, distribution or repayment, the Company's liquid
assets shall not be less than the amount of actual damages claimed in such
litigation or (ii) the Rating Agency Condition shall have been satisfied
with respect to any such payment, distribution or repayment. The Company
will not at any time institute against the Trust any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
SECTION 11.09. No Petition. The Owner Trustee, by entering into
this Agreement, each Owner, by accepting a Trust Certificate or a
beneficial interest therein, and the Indenture Trustee and each Noteholder,
by accepting the benefits of this Agreement, hereby covenant and agree that
they will not at any time institute against the Company or the Trust, or
join in any institution against the Company or the Trust of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Trust Certificates,
the Notes, this Agreement or any of the Basic Documents.
SECTION 11.10. No Recourse. Each Owner, by accepting a Trust
Certificate or a beneficial interest therein, acknowledges that such
Owner's Trust Certificates represent beneficial interests in the Trust only
and do not represent interests in or obligations of the Servicer, the
Company, the Owner Trustee, the Indenture Trustee or any of their
respective Affiliates and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Trust Certificates or the Basic Documents. SECTION 11.11.
Headings. The headings of the various Articles and Sections herein are for
convenience of reference only and shall -------- not define or limit any of
the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. Trust Certificate Transfer Restrictions. The Trust
Certificates may not be acquired by or for the account of: (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code or (iii) any entity whose underlying assets include plan assets
by reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Trust Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above
written.
GS Mortgage Securities Corp.,
as Company,
By __________________________
Name:
Title:
_____________________________,
not in its individual capacity
but solely as Owner Trustee,
By ___________________________
Name:
Title:
EXHIBIT A
FORM OF TRUST CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NUMBER $____________ R- CUSIP NO. ________
[ ] AUTO RECEIVABLES TRUST 200__-__
_______% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which consists of a pool of motor vehicle installment loan
contracts and motor vehicle retail installment sale contracts
(collectively, "Motor Vehicle Installment Contracts") secured by new and
used automobiles, vans and light-duty trucks.
(This Trust Certificate does not represent an interest in or an
obligation of Xxxxxxx Xxxxx & Co. or any of its affiliates, except to the
extent described below.)
THIS CERTIFIES THAT ___________________ is the registered owner of
______________ DOLLARS nonassessable, fully-paid, fractional undivided
interest in [ ]Auto Receivables Trust 200__-__ (the "Trust"), formed
pursuant to a Trust Agreement dated as of _________________ (the "Trust
Agreement"), between [!!!!!], a Delaware corporation (the "Company") and
___________________, as owner trustee (the "Owner Trustee").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
as Owner Trustee
By: ______________________________
Authorized Signatory
The Trust was created pursuant to the Trust Agreement, a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement or the Sale and
Servicing Agreement dated as of ___________________ (as amended and
supplemented from time to time, the "Sale and Servicing Agreement"), among
the Trust, the Company, and ________________, as servicer (the "Servicer"),
as applicable.
This Certificate is one of the duly authorized Certificates
designated as the _______% Asset Backed Certificates (herein called the
"Trust Certificates") issued by the Trust. Also issued under an Indenture
dated as of ___________________ (the "Indenture"), between the Trust and
____________________, as indenture trustee, are the two classes of Notes
designated as "Class A-1 _______% Asset Backed Notes" and the "Class A-2
______% Asset Backed Notes," (collectively, the "Notes"). This Trust
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Trust Certificate by virtue of its acceptance hereof assents and by
which such Holder is bound. The property of the Trust consists of a pool of
Motor Vehicle Installment Contracts secured by new and used automobiles,
vans and light-duty trucks, all monies due under such Receivables on or
after the Cutoff Date, in the case of Precomputed Receivables, or received
on or after the Cutoff Date, in the case of Simple Interest Receivables,
security interests in the vehicles financed thereby, certain bank accounts
and the proceeds thereof, proceeds from claims on certain insurance
policies and certain other rights under the Trust Agreement and the Sale
and Servicing Agreement, and all proceeds of the foregoing. The rights of
the Holders of the Trust Certificates are subordinated to the rights of the
Holders of the Notes, as set forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there will be distributed on the
___________ day of each month or, if such _________ day is not a Business
Day, the next Business Day (each, a "Distribution Date"), commencing on
__________________, to the Person in whose name this Trust Certificate is
registered at the close of business on the day immediately preceding such
Distribution Date (the "Record Date"), such Certificateholder's fractional
undivided interest in the amount to be distributed to Certificateholders on
such Distribution Date. No distributions of principal will be made on any
Certificate until all of the Notes have paid in full.
The Holder of this Trust Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Trust Certificate
are subordinated to the rights of the Noteholders as described in the Sale
and Servicing Agreement and the Indenture.
It is the intent of the Company, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust will
be treated as a partnership and the Certificateholders (including the
Company) will be treated as partners in that partnership. The Company and
the other Certificateholders, by acceptance of a Trust Certificate, agree
to treat, and to take no action inconsistent with the treatment of, the
Trust Certificates for such tax purposes as partnership interests in the
Trust.
Each Certificateholder or Certificate Owner, by its acceptance of
a Trust Certificate or, in the case of a Certificate Owner, a beneficial
interest in a Trust Certificate, covenants and agrees that such
Certificateholder or Certificate Owner, as the case may be, will not at any
time institute against the Company, or join in any institution against the
Company of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, the Trust
Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided
in the Trust Agreement by the Owner Trustee by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Trust Certificate or the
making of any notation hereon, except that with respect to Trust
Certificates registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Trust Certificate will made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of
this Trust Certificate at the office or agency maintained for that purpose
by the Owner Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual
signature, this Trust Certificate shall not entitle the Holder hereof to
any benefit under the Trust Agreement or the Sale and Servicing Agreement
or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Trust Certificate to be
duly executed.
[ ] AUTO RECEIVABLES TRUST 200__-__
By: _____________________________________,
not in its individual capacity but
solely as Owner Trustee
Dated: _____________
By: ______________________________________
Authorized Signatory
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Servicer, the Company, the Owner Trustee or any of their
respective Affiliates, and no recourse may be had against such parties or
their assets except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Trust Certificate
is not guaranteed by any governmental agency or instrumentality and is
limited in right of payment to certain collections and recoveries with
respect to the Receivables (and certain other amounts), all as more
specifically set forth herein and in the Sale and Servicing Agreement. A
copy of each of the Sale and Servicing Agreement and the Trust Agreement
may be examined by any Certificateholder upon written request during normal
business hours at the principal office of the Company and at such other
places, if any, designated by the Company.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under
the Trust Agreement at any time by the Company and the Owner Trustee with
the consent of Holders of the Trust Certificates and of each class of the
Notes, voting as a class, evidencing not less than a majority of the
Certificate Balance and the outstanding principal balance of the Notes of
each such class. Any such consent by the Holder of this Trust Certificate
shall be conclusive and binding on such Holder and on all future Holders of
this Trust Certificate and of any Trust Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Trust Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Trust
Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar, duly executed by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same aggregate
interest in the Trust will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Trust Agreement is
____________________________.
Except as provided in the Trust Agreement, the Trust Certificates
are issuable only as registered Trust Certificates without coupons in
denominations of $20,000 and in integral multiples of $1 in excess thereof.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Trust Certificates are exchangeable for new Trust
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes,
and none of the Owner Trustee, the Certificate Registrar or any such agent
shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to
the Trust Agreement and the Sale and Servicing Agreement and the
disposition of all property held as part of the Owner Trust Estate. The
Servicer of the Receivables may at its option purchase the Owner Trust
Estate at the price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect an
early retirement of the Trust Certificates; however, such right of purchase
is exercisable only as of the last day of any Collection Period as of which
the Pool Balance is less than or equal to 10% of the Cutoff Date Pool
Balance.
The Trust Certificates may not be acquired by (a) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (b) a plan described in Section 4975(e)(1)
of the Code or (c) any entity whose underlying assets include plan assets
by reason of a plan's investment in the entity or which uses plan assets to
acquire Trust Certificates (each, a "Benefit Plan"). By accepting and
holding this Trust Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby
irrevocably constitutes and appoints _____________________ attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
_____________________________/*/ Signature
Guaranteed:
_____________________________/*/
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
[ ] AUTO RECEIVABLES TRUST 200__-__
THIS Certificate of Trust of [ ] AUTO RECEIVABLES TRUST 200__- __
(the "Trust"), dated ____________________, is being duly executed and filed
by ___________________, a Delaware banking corporation, as trustee, to form
a business trust under the Delaware Business Trust Act (12 Del. Code. ss.
3801 et seq.).
1. Name: The name of the business trust formed hereby is [ ] AUTO
RECEIVABLES TRUST 200__-__.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is _______________________. Attention:
______________________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
___________________________
____, not in its individual capacity
but solely as owner trustee under a
Trust Agreement dated as of
___________________________________
By: __________________________________
Name:
Title:
EXHIBIT C
[Form of Certificate Depository Agreement]
Letter of Representations
[To be Completed by Issuer and Trustee]
[Name of Issuer]
[Name of Trustee]
(Date)
Attention: General Counsel's Office
The Depository Trust Company
00 Xxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: ______________________________________________________________________
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Securities"). Trustee
will act as trustee with respect to the Securities pursuant to a trust
indenture dated ____________________ (the "Document").
______________________ (the "Underwriter") is distributing the Securities
through the Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at
DTC, and to act in accordance with its Rules with respect to the
Securities, Issuer and Trustee make the following representations to DTC:
1. Prior to closing on the Securities on ____________________
there shall be deposited with DTC one or more Security certificates
registered in the name of DTC's nominee, Cede & Co., for each stated
maturity of the Securities in the face amounts set forth on Schedule A
hereto, the total of which represents 100% of the principal amount of such
Securities. If, however, the aggregate principal amount of any maturity
exceeds $400 million, one certificate shall be issued with respect to each
$400 million of principal amount and an additional certificate shall be
issued with respect to any remaining principal amount. Each Security
certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Issuer represents: [Note: Issuer must represent one of the
following, and shall cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant")
through DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase
the Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that
day, either approve or cancel the Deposit Instruction through the DWAC
system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system
to decrease the Participant's account by a specified number of Securities
(a "Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern
Time) that day, either approve or cancel the Withdrawal Instruction through
the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name
of Cede & Co. for the quantity of Securities evidenced by the Balance
Certificate after the Deposit or Withdrawal Instruction is effected.]
[The Security certificate(s) shall be custodied with DTC.]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in
the Securities any information contained in the Security certificate(s);
and (b) acknowledges that neither DTC's Participants nor any person having
an interest in the Securities shall be deemed to have notice of the
provisions of the Security certificates by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date
for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no
fewer than 15 calendar days in advance of such record date. Notices to DTC
pursuant to this Paragraph by telecopy shall be directed to DTC's
Reorganization Department, Proxy Unit at (000) 000-0000 or (000) 000-0000.
If the party sending the notice does not receive a telecopy receipt from
DTC confirming that the notice has been received, such party shall
telephone (000) 000-0000. Notices to DTC pursuant to this Paragraph, by
mail or by any other means, shall be sent to: Supervisor, Proxy Unit,
Reorganization Department, The Depository Trust Company, 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000-0000
4. In the event of a full or partial redemption, Issuer or Agent
shall send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business on the business
day before or, if possible, two business days before the Publication Date.
Issuer or Agent shall forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission for multiple
CUSIP numbers (if applicable) which includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be no fewer than 30
days nor more than 60 days prior to the redemption date or, in the case of
an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to
DTC's Call Notification Department at (516) 227- 4164 or (000) 000-0000. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone
(000) 000-0000. Notices to DTC pursuant to this Paragraph, by mail or by
any other means, shall be sent to: Manager, Call Notification Department,
The Depository Trust Company, 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, XX
00000-0000
5. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes), notice by
Issuer or Agent to Security holders shall be sent to DTC specifying the
terms of the tender and the Publication Date of such notice. Such notice
shall be sent to DTC by a secure means (e.g., legible telecopy, registered
or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before or, if possible, two business days
before the Publication Date. Issuer or Agent shall forward such notice
either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which
includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use and timeliness of such notice.) Notices to DTC
pursuant to this Paragraph and notices of other corporate actions by
telecopy shall be directed to DTC's Reorganization Department at (212)
855-5488. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party
shall telephone (000) 000-0000. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to: Manager, Reorganization
Department, Reorganization Window, The Depository Trust Company, 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede &
Co., as nominee of DTC, or its registered assigns, as the record owner, is
entitled to tender the Securities, such tenders will be effected by means
of DTC's Repayment Option Procedures. Under the Repayment Option
Procedures, DTC shall receive, during the applicable tender period,
instructions from its Participants to tender Securities for purchase.
Issuer and Agent agree that such tender for purchase may be made by DTC by
means of a book-entry credit of such Securities to the account of Agent,
provided that such credit is made on or before the final day of the
applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand
or by a secure means (e.g., legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure
that such notice is in DTC's possession no later than the close of business
two business days before the Publication Date. The Publication Date shall
be no fewer than 15 days prior to the expiration date of the applicable
tender period. Such notice shall state whether any partial redemption of
the Securities is scheduled to occur during the applicable optional tender
period. Notices to DTC pursuant to this Paragraph by telecopy shall be
directed to DTC's Put Bond Unit at (000) 000-0000. If the party sending the
notice does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (000) 000-0000.
Notices to DTC pursuant to this Paragraph, by mail or by any other means,
shall be sent to: Supervisor, Put Bond Unit, Reorganization Department, The
Depository Trust Company, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000-0000.
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum
authorized denomination if less than $1,000 face value) payable on each
payment date allocated as to the interest and principal portions thereof
preferably five, but no fewer than two, business days prior to such payment
date. Such notices, which shall also contain the current pool factor, any
special adjustments to principal/interest rates (e.g., adjustments due to
deferred interest or shortfall), and Agent contact's name and telephone
number, shall be sent by telecopy to DTC's Dividend Department at (212)
855-4555, and receipt of such notices shall be confirmed by telephoning
(000) 000-0000. Notices to DTC, pursuant to this Paragraph, by mail or by
any other means, shall be sent to: Manager, Announcements, Dividend
Department, The Depository Trust Company, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000-0000.
9. Issuer represents: [Note: Issuer must represent one of the
following, and shall cross out the other.] [The interest accrual period is
record date to record date.] [The interest accrual period is payment date
to payment date.]
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC
as soon as the information is available. Issuer or Agent shall provide such
notice directly to DTC electronically, as previously arranged by Issuer or
Agent and DTC. If electronic transmission has not been arranged, absent any
other arrangements between Issuer or Agent and DTC, such information shall
be sent by telecopy to DTC's Dividend Department at (000) 000-0000 or (212)
855-4556. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party
shall telephone (000) 000-0000. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to DTC's Dividend Department
as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns, in same-day funds no later
than 2:30 p.m. (Eastern Time) on each payment date. Issuer shall remit by
1:00 p.m. (Eastern Time) on the payment date all such interest payments due
Agent, or at such earlier time as may be required by Agent to guarantee
that DTC shall receive payment in same-day funds no later than 2:30 p.m.
(Eastern Time) on the payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired to the Dividend Deposit
Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated
notification of CUSIP-level detail. If the circumstances prevent the funds
paid to DTC from equaling the dollar amount associated with the detail
payments by 12:00 noon (Eastern Time), Issuer or Agent must provide
CUSIP-level reconciliation to DTC no later than 2:30 p.m. (Eastern Time).
Reconciliation must be provided by either automated means or written
format. Such reconciliation notice, if sent by telecopy, shall be directed
to DTC Dividend Department at (000) 000-0000 and receipt of such
reconciliation notice shall be confirmed by telephoning (000) 000-0000.
13. Maturity and redemption payments allocated with respect to
each CUSIP number shall be received by Cede & Co., as nominee of DTC, or
its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time)
on the payment date all such maturity and redemption payments due Agent, or
at such earlier time as required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Absent any other arrangements between Issuer or Agent and
DTC, such funds shall be wired to the Redemption Deposit Account number
that will be stamped on the signature page hereof at the time DTC executes
this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's
Repayment Option Procedures shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on the payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such reorganization payments due
Agent, or at such earlier time as required by Agent to guarantee that DTC
shall receive payment in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired to the Reorganization Deposit
Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (212) 855- 4777. If the party
sending the report does not receive a telecopy receipt from DTC confirming
that the notice has been received, such party shall telephone (212)
000-0000.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest
or principal may be sent.
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's
or Agent's invitation) necessitating a reduction in the aggregate principal
amount of Securities outstanding or an advance refunding of part of the
Securities outstanding, DTC, in its discretion: (a) may request Issuer or
Agent to issue and authenticate a new Security certificate; or (b) may make
an appropriate notation on the Security certificate indicating the date and
amount of such reduction in principal except in the case of final maturity,
in which case the certificate will be presented to Issuer or Agent prior to
payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer
or Agent shall issue, transfer, and exchange certificates in appropriate
amounts, as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or
Agent the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with
DTC by taking appropriate action to make available one or more separate
certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one and
the same instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without
giving effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice
was properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with the following, as
amended from time to time: (a) any exemptions from registration under the
Securities Act of 1933; (b) the Investment Company Act of 1940; (c) the
Employee Retirement Income Security Act of 1974; (d) the Internal Revenue
Code of 1986; (e) any rules of any self-regulatory organizations (as
defined under the Securities Exchange Act of 1934); or (f) any other local,
state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent.
DTC charges a fee for such SPLs. This authorization, unless revoked by
Issuer, shall continue with respect to the Securities while any Securities
are on deposit at DTC, until and unless Agent shall no longer be acting. In
such event, Issuer shall provide DTC with similar evidence, satisfactory to
DTC, of the authorization of any successor thereto so to act. Requests for
SPLs shall be sent by telecopy to the Proxy Unit of DTC's Reorganization
Department at (000) 000-0000 or (000) 000-0000. Receipt of such requests
shall be confirmed by telephoning (000) 000-0000. Requests for SPLs, sent
by mail or by any other means, shall be directed to the address indicated
in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time
to time. DTC's Operational Arrangements are posted on DTC's website at
"xxx.XXX.xxx."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
Notes: Very truly yours,
A. If there is an Agent (as defined in this Letter ______________________________________
of Representations), Agent as well as Issuer must (Issuer)
sign this Letter. If there is no Agent, in signing By:___________________________________
this Letter Issuer itself undertakes to perform all (Authorized Officer's Signature)
of the obligations set forth herein.
B. Schedule B contains statements that DTC ______________________________________
believes accurately describe DTC, the method of (Trustee)
effecting book-entry transfers of securities By:___________________________________
distributed through DTC, and certain related (Authorized Officer's Signature)
matters.
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: ____________________________________________
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
SCHEDULE A
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ---------------- ------------- -------------
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee) or such other name as may be
requested by an authorized representative of DTC. One fully-registered
Security certificate will be issued for [each issue of] the Securities,
[each] in the aggregate principal amount of such issue, and will be
deposited with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $400 million, one certificate will be issued with respect to
each $400 million of principal amount and an additional certificate will be
issued with respect to any remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants ("Direct Participants") deposit with DTC. DTC also facilitates
the settlement among Direct Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The Rules applicable to DTC and its Direct and Indirect
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities
on DTC's records. The ownership interest of each actual purchaser of each
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected
to receive written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Securities are to be
accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system for the
Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. or such other name as may be requested by
an authorized representative of DTC. The deposit of Securities with DTC and
their registration in the name of Cede & Co. or such other nominee do not
effect any change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Direct and
Indirect Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. [Beneficial Owners of
Securities may wish to take certain steps to augment transmission to them
of notices of significant events with respect to the Securities, such as
redemptions, tenders, defaults, and proposed amendments to the security
documents. Beneficial Owners of Securities may wish to ascertain that the
nominee holding the Securities for their benefit has agreed to obtain and
transmit notices to Beneficial Owners, or in the alternative, Beneficial
Owners may wish to provide their names and addresses to the registrar and
request that copies of the notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will
consent or vote with respect to the Securities. Under its usual procedures,
DTC mails an Omnibus Proxy to Issuer as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on
the Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to
credit Direct Participants' accounts, upon DTC's receipt of funds and
corresponding detail information from Issuer or Agent on payable date in
accordance with their respective holdings shown on DTC's records. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participant and not of DTC,
Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of redemption proceeds,
distributions, and dividends to Cede & Co. (or such other nominee as may be
requested by an authorized representative of DTC) is the responsibility of
Issuer or Agent, disbursement of such payments to Direct Participants shall
be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in
the Securities, on DTC's records, to [Tender/Remarketing] Agent. The
requirement for physical delivery of Securities in connection with an
optional tender or a mandatory purchase will be deemed satisfied when the
ownership rights in the Securities are transferred by Direct Participants
on DTC's records and followed by a book-entry credit of tendered Securities
to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under such circumstances, in the event that a
successor securities depository is not obtained, Security certificates are
required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depository). In
that event, Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer believes to be
reliable, but Issuer takes no responsibility for the accuracy thereof.
