EXHIBIT 4.1
EXECUTION COPY
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AMENDED AND RESTATED TRUST AGREEMENT
between
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of August 2, 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ....................................................................... 1
Section 1.01 Capitalized Terms ......................................................... 1
Section 1.02 Other Definitional Provisions ............................................. 1
ARTICLE II ORGANIZATION ...................................................................... 2
Section 2.01 Name ...................................................................... 2
Section 2.02 Office .................................................................... 2
Section 2.03 Purposes and Powers ....................................................... 2
Section 2.04 Appointment of Owner Trustee .............................................. 3
Section 2.05 Initial Capital Contribution of Trust Property ............................ 3
Section 2.06 Declaration of Trust ...................................................... 3
Section 2.07 Characterization of the Issuer for Tax Purposes ........................... 3
Section 2.08 Liability of Certificateholders ........................................... 4
Section 2.09 Title to Trust Property ................................................... 4
Section 2.10 Situs of Trust ............................................................ 4
Section 2.11 Representations, Warranties and Covenants of the Depositor ................ 4
Section 2.12 Federal Income Tax Allocations ............................................ 5
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS ...................................... 6
Section 3.01 Initial Ownership ......................................................... 6
Section 3.02 The Certificates .......................................................... 6
Section 3.03 Execution, Authentication and Delivery of Certificates .................... 7
Section 3.04 Registration of Transfer and Exchange of Certificates ..................... 7
Section 3.05 Mutilated, Destroyed, Lost or Stolen Certificates ......................... 9
Section 3.06 Persons Deemed Owners ..................................................... 9
Section 3.07 Access to List of Certificateholders' Names and Addresses ................. 9
Section 3.08 Maintenance of Office or Agency ........................................... 10
Section 3.09 Appointment of Paying Agent ............................................... 10
Section 3.10 Definitive Certificates ................................................... 11
ARTICLE IV ACTIONS BY OWNER TRUSTEE .......................................................... 11
Section 4.01 Prior Notice with Respect to Certain Matters .............................. 11
Section 4.02 Action by Certificateholders with Respect to Certain Matters .............. 12
Section 4.03 Restrictions on Certificateholders' Power ................................. 12
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.04 Majority Control .......................................................... 12
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES ........................................ 13
Section 5.01 Establishment of Trust Account ............................................ 13
Section 5.02 Application of Trust Funds ................................................ 13
Section 5.03 Method of Payment ......................................................... 14
Section 5.04 No Segregation of Moneys; No Interest ..................................... 14
Section 5.05 Accounting and Reports to Certificateholders, the Internal Revenue Service
and Others ................................................................ 14
Section 5.06 Signature on Returns; Tax Matters Partner ................................. 15
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE ............................................. 15
Section 6.01 General Authority ......................................................... 15
Section 6.02 General Duties ............................................................ 15
Section 6.03 Action upon Instruction ................................................... 15
Section 6.04 No Duties Except as Specified in this Agreement or in Instructions ........ 16
Section 6.05 No Action Except Under Specified Documents or Instructions ................ 17
Section 6.06 Restrictions .............................................................. 17
Section 6.07 Administrative Duties ..................................................... 17
ARTICLE VII CONCERNING THE OWNER TRUSTEE ...................................................... 21
Section 7.01 Acceptance of Trusts and Duties ........................................... 21
Section 7.02 Furnishing of Documents ................................................... 22
Section 7.03 Representations and Warranties ............................................ 22
Section 7.04 Reliance; Advice of Counsel ............................................... 23
Section 7.05 Not Acting in Individual Capacity ......................................... 24
Section 7.06 Owner Trustee Not Liable for Certificates or for Receivables .............. 24
Section 7.07 Owner Trustee May Own Certificates and Notes .............................. 24
Section 7.08 Doing Business in Other Jurisdictions ..................................... 25
Section 7.09 Paying Agent, Certificate Registrar and Authenticating Agent .............. 25
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE ..................................................... 25
Section 8.01 Owner Trustee's Fees and Expenses ......................................... 25
Section 8.02 Indemnification ........................................................... 25
Section 8.03 Payments to the Owner Trustee ............................................. 26
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE IX TERMINATION OF TRUST AGREEMENT .................................................... 26
Section 9.01 Termination of Trust Agreement ............................................ 26
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES ............................ 27
Section 10.01 Eligibility Requirements for Owner Trustee ................................ 27
Section 10.02 Resignation or Removal of Owner Trustee ................................... 27
Section 10.03 Successor Owner Trustee ................................................... 28
Section 10.04 Merger or Consolidation of Owner Trustee .................................. 29
Section 10.05 Appointment of Co-Trustee or Separate Trustee ............................. 29
ARTICLE XI MISCELLANEOUS ..................................................................... 30
Section 11.01 Supplements and Amendments ................................................ 30
Section 11.02 No Legal Title to Trust Property in Certificateholders .................... 31
Section 11.03 Limitations on Rights of Others ........................................... 32
Section 11.04 Notices ................................................................... 32
Section 11.05 Severability .............................................................. 32
Section 11.06 Separate Counterparts ..................................................... 32
Section 11.07 Successors and Assigns .................................................... 33
Section 11.08 Covenants of the Depositor ................................................ 33
Section 11.09 No Petition ............................................................... 33
Section 11.10 No Recourse ............................................................... 34
Section 11.11 Headings .................................................................. 34
Section 11.12 GOVERNING LAW; WAIVER OF JURY TRIAL ....................................... 34
Section 11.13 Certificate Transfer Restrictions ......................................... 34
Section 11.14 Xxxxxxxx-Xxxxx ............................................................ 35
Section 11.15 Acceptance of Terms of Agreement .......................................... 35
Section 11.16 Subordination Agreement ................................................... 35
Section 11.17 Rule 144A Information ..................................................... 35
Section 11.18 Securitization Cooperation Annex .......................................... 36
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Securitization Cooperation Annex
EXHIBITS
Exhibit A Form of Certificate .......................................... A-1
Exhibit B Form of Transfer Certificate ................................. B-1
Exhibit C Form of Investment Letter .................................... X-0
Xxxxxxx X-0 Financing Statement against the Seller ..................... X-0-0
Xxxxxxx X-0 Financing Statement against the Depositor .................. X-0-0
Xxxxxxx X-0 Financing Statement against the Issuer ..................... D-3-1
iv
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 2, 2006, is
between XXXXXXX SACHS ASSET BACKED SECURITIES CORP., a Delaware corporation, as
depositor (the "DEPOSITOR"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as owner trustee (the "OWNER TRUSTEE").
WHEREAS, the Owner Trustee and the Depositor entered into a Trust
Agreement dated as of June 19, 2006 (the "ORIGINAL TRUST AGREEMENT"); and
WHEREAS, the Original Trust Agreement is being amended and restated as of
the date hereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the Depositor and the Owner Trustee hereby agree that the Original Trust
Agreement shall be amended and restated as follows:
ARTICLE I
DEFINITIONS
Section 1.01 CAPITALIZED TERMS. For all purposes of this Agreement,
capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in Appendix A to the Sale and Servicing Agreement, dated as of
the date hereof (the "SALE AND SERVICING AGREEMENT"), by and among the Issuer,
the Depositor, Xxxxxxx Xxxxx Mortgage Company, as Servicer and JPMorgan Chase
Bank, National Association, as Indenture Trustee.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) 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.
(b) 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, 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.
(c) 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; "or" includes "and/or"; and
the term "including" shall mean "including without limitation".
AMENDED AND RESTATED
TRUST AGREEMENT
(d) The definitions contained in this Agreement are applicable to
the singular and plural forms of such terms and to the masculine, feminine and
neuter genders of such terms.
(e) 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 Issuer heretofore created and continued
hereby is known as "GS Auto Loan Trust 2006-1," in which name the Owner Trustee
may conduct the business of the Issuer, make and execute contracts and other
instruments on behalf of the Issuer and xxx and be sued on behalf of the Issuer.
Section 2.02 OFFICE. The office of the Issuer 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
Certificateholders and the Depositor.
Section 2.03 PURPOSES AND POWERS. The purpose of the Issuer is to
engage in the following activities and the Owner Trustee acting on behalf of the
Issuer shall have the power and authority:
(a) to acquire, hold and manage the Trust Property;
(b) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes and the
Certificates, in each case in accordance with the Basic Documents;
(c) in exchange for the Notes and the Certificates or the proceeds
thereof, to purchase the Receivables, to pay the organizational, start-up and
transactional expenses of the Issuer and to pay the balance of such proceeds to
the Depositor pursuant to the Sale and Servicing Agreement;
(d) to assign, grant, transfer, pledge, mortgage and convey the
Trust Property pursuant to the Indenture and to hold, manage and distribute to
the Certificateholders pursuant to the terms of the Sale and Servicing Agreement
any portion of the Trust Property released from the Lien of, and remitted to the
Issuer pursuant to, the Indenture;
(e) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(f) 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
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TRUST AGREEMENT
(g) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of the
Trust Property and the making of distributions to the Certificateholders and the
Noteholders.
The Owner Trustee acting on behalf of the Issuer is hereby authorized to
engage in the foregoing activities. The Issuer 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 Depositor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05 INITIAL CAPITAL CONTRIBUTION OF TRUST PROPERTY. The
Depositor 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 Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Property and
shall be deposited in the Certificate Distribution Account. The Depositor shall
pay organizational expenses of the Issuer 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 Trust Property in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Issuer under the Basic Documents. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Statutory Trust Statute with respect to accomplishing
the purposes of the Issuer.
Section 2.07 CHARACTERIZATION OF THE ISSUER FOR TAX PURPOSES.
(a) It is the intention of the parties hereto that the Issuer
constitute a statutory trust under the Statutory Trust Statute and that this
Agreement constitute the governing instrument of such statutory trust. It is the
intention of the parties hereto that, solely for federal, state and local income
and franchise tax purposes: (1) if there is one beneficial owner of the
Certificates, the Issuer shall be treated as a disregarded entity, and (2) if
there is more than one beneficial owner of the Certificates, the Issuer shall be
treated as a partnership for income and franchise tax purposes, with the assets
of the partnership being the Receivables and other assets held by the Issuer,
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 Issuer and to the extent applicable, the
Certificateholders, will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the foregoing characterization
of the Issuer provided in the preceding sentence for such tax purposes and will
not take any position contrary to this characterization in any federal or state
tax filings. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Statutory Trust Statute
with respect to accomplishing the purposes of the Trust. The
3 AMENDED AND RESTATED
TRUST AGREEMENT
Owner Trustee has filed the Certificate of Trust with the Secretary of State of
the State of Delaware.
(b) The Owner Trustee shall not file or join in, and each
Certificateholder by acceptance of its Certificates agrees that it shall not
file or join in, an election to treat the Issuer as an association pursuant to
Section 301.7701-3 of the Treasury Regulations (and thus, a corporation under
Section 301.7701-2(b)(2) of the Treasury Regulations).
(c) Neither the Issuer nor any affiliate of the Issuer shall cause
or permit Certificates to be included on (nor shall such persons recognize any
purchases or sales thereof through) (a) any national, non-U.S., regional, local
or other securities exchange, or (b) any over-the-counter market (including an
interdealer quotation system that regularly disseminates firm buy or sell
quotations by identified brokers or dealers by electronic means or otherwise).
(d) The Issuer shall not participate in any manner in the
establishment or inclusion of any interest in the Issuer (including through the
repurchase or redemption of any interest in the Issuer) on an established
securities market or a secondary market or the substantial equivalent thereof
(within the meaning of the Treasury Regulations under Section 7704 of the Code),
and shall not recognize any transfers of any interest in the Issuer made on such
a market by redeeming the interest in the Issuer of a transferor, admitting the
transferee as a Certificateholder, or otherwise recognizing any rights of the
transferee.
(e) For purposes of Section 2.07(d), the term "interest in the
Issuer" shall have the meaning given to the term "interest in a partnership" in
the Treasury Regulations under Section 7704 of the Code and shall include,
without limitation, any financial instrument or contract, the value of which is
determined in whole or in part by reference to the Issuer.
Section 2.08 LIABILITY OF CERTIFICATEHOLDERS. The Certificateholders
(including the Depositor or any Affiliate thereof) shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the State
of Delaware.
Section 2.09 TITLE TO TRUST PROPERTY. Subject to the Indenture,
legal title to all the Trust Property shall be vested at all times in the Issuer
as a separate legal entity.
Section 2.10 SITUS OF TRUST. The Issuer will be located in the State
of Delaware and administered in the State of Delaware or the State of New York.
All bank accounts maintained by the Owner Trustee on behalf of the Issuer shall
be located in the State of Delaware or the State of New York. The Issuer shall
not have any employees; PROVIDED, HOWEVER, that nothing herein shall restrict or
prohibit the Depositor or the Owner Trustee from having employees within or
without the State of Delaware. Payments will be received by the Issuer only in
Delaware or New York, and payments will be made by the Issuer only from Delaware
or New York. The only office of the Issuer will be at the Corporate Trust Office
in the State of Delaware.
Section 2.11 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
DEPOSITOR. The Depositor hereby represents and warrants to the Owner Trustee
that:
4 AMENDED AND RESTATED
TRUST AGREEMENT
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its property
or the conduct of its business shall require such qualifications.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full power
and authority to sell and assign the property to be sold and assigned to and
deposited with the Issuer and the Depositor has duly authorized such sale and
assignment and deposit to the Issuer by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Depositor by all necessary corporate action.
(d) The Depositor has duly executed and delivered this Agreement,
and this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor, in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of creditors'
rights in general and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or the by-laws of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound; (ii)
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); or (iii) violate any law or, to
the best of the Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(f) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement.
Section 2.12 FEDERAL INCOME TAX ALLOCATIONS. If there is more than
one beneficial owner of the Certificates, net income of the Issuer for any month
as determined for federal income tax purposes (and each item of income, gain,
loss and deduction entering into the
5 AMENDED AND RESTATED
TRUST AGREEMENT
computation thereof) shall be allocated among the Certificateholders as of the
first day following the Record Date, in proportion to their percentage ownership
interest of Certificates on the Record Date.
If there is more than one beneficial owner of the Certificates, net losses
of the Issuer, 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 among the Certificateholders as of the
first day following the Record Date, in proportion to their percentage ownership
interest of Certificates on the Record Date. If there is more than one
beneficial owner of the Certificates, the Issuer 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 Certificateholders, 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 Issuer by
the execution of the Original Trust Agreement and until the issuance of the
Certificates, the Depositor shall be the sole beneficial owner of the Issuer.
Section 3.02 THE CERTIFICATES.
(a) The Certificates shall be issued in minimum denominations of a
one percent (1%) Percentage Interest in the Issuer. The Certificates shall be
executed on behalf of the Issuer by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer, shall be
validly issued and entitled to the benefit of this Agreement and shall be valid
and binding obligations of the Issuer, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Certificates can only be purchased, acquired, or held by
an individual or entity who is a "U.S. person" as determined for U.S. federal
income tax purposes or who holds the Certificates in connection with the conduct
of a trade or business within the United States and who delivers to the Owner
Trustee, the Certificate Registrar and the Depositor a properly executed Form
W-8ECI in connection with their acquisition of the Certificates and at such
other times as reasonably requested by the Owner Trustee, the Certificate
Registrar and the Depositor or as required by law.
(c) A transferee of a Certificate, if any, shall become a
Certificateholder, shall become bound by this Agreement and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder upon
such transferee's acceptance of a Certificate duly registered in such
transferee's name pursuant to Section 3.04.
6 AMENDED AND RESTATED
TRUST AGREEMENT
Section 3.03 EXECUTION, AUTHENTICATION AND DELIVERY OF CERTIFICATES.
On the Closing Date, the Owner Trustee shall cause the Certificates in an
aggregate Percentage Interest equal to 100% to be executed on behalf of the
Issuer and authenticated by the Owner Trustee on behalf of the Issuer and
delivered to or upon the written order of the Depositor, without further action
by the Depositor, in authorized denominations. No Certificate shall entitle its
Holder to any benefit under this Agreement or be valid for any purpose unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or JPMorgan Chase Bank, National Association ("JPMORGAN CHASE"), as the Owner
Trustee's authenticating agent, by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
When a Certificate is duly executed and issued by the Owner Trustee and
duly authenticated in accordance with this Agreement, the Certificate will be
fully paid, validly issued, nonassessable and entitled to the benefits of this
Agreement.
Section 3.04 REGISTRATION OF TRANSFER AND EXCHANGE OF 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 Certificates and of transfers and
exchanges of Certificates as herein provided. JPMorgan Chase shall be the
initial Certificate Registrar.
The Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under said Act
and such state securities laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and state securities laws, in
order to assure compliance with the Securities Act and such laws, the Holder
desiring to effect such transfer and such Holder's prospective transferee shall
each certify to the Owner Trustee or the Certificate Registrar and the Depositor
in writing the facts surrounding the transfer in substantially the forms set
forth in Exhibit B and Exhibit C (the "INVESTMENT LETTER"). Except in the case
of a transfer as to which the proposed transferee has provided an Investment
Letter with respect to a Rule 144A transaction, there shall also be delivered to
the Owner Trustee or the Certificate Registrar and the Depositor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act and state securities laws, which Opinion of Counsel shall not be
an expense of the Issuer, the Owner Trustee, the Certificate Registrar or the
Indenture Trustee (unless it is the transferee from whom such opinion is to be
obtained) or of the Depositor or the Seller; PROVIDED, that such Opinion of
Counsel in respect of the applicable state securities laws may be a memorandum
of law rather than an opinion if such counsel is not licensed in the applicable
jurisdiction. Upon request, the Owner Trustee shall provide to any Holder of a
Certificate and any prospective transferee designated by any such Holder
information regarding the Certificates and the Receivables and such other
information which is in the possession of the Owner Trustee or which can be
obtained by the Owner Trustee without undue burden or expense in order to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption
7 AMENDED AND RESTATED
TRUST AGREEMENT
provided by Rule 144A. Each Holder of a Certificate desiring to effect such a
transfer shall, and does hereby agree to, indemnify the Issuer, the Owner
Trustee, the Indenture Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with federal and state securities laws.
All transfers of Certificates shall be subject to the transfer
restrictions described in Section 11.13 of this Agreement. Furthermore, no
transfer of a Certificate shall be made to any Person unless the Owner Trustee
or the Certificate Registrar and the Depositor have received a certificate in
the form of paragraphs 3 and 4 to the Investment Letter attached hereto as
Exhibit C from such Person to the effect that such Person is not a Benefit Plan
(as defined in Section 11.13(a)) and that such person is not a partnership,
grantor trust, or S Corporation (as defined in the Code) in which, after giving
effect to the proposed transfer, 50% or more of the value of each beneficial
ownership interest of such entity is attributable to the Certificates and/or the
Notes and that such Certificates have not been transferred through an
"established securities market" within the meaning of Section 7704(b) of the
Code.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
execute, authenticate and deliver (or shall cause JPMorgan Chase as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new 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 Certificateholder,
Certificates may be exchanged for other Certificates of authorized denominations
of a like aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.08.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the related Certificateholder or such Certificateholder's attorney duly
authorized in writing. Each 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 Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Certificates for a period of fifteen (15) days
preceding the due date for any payment with respect to the Certificates.
Notwithstanding anything contained herein to the contrary, neither the
Certificate Registrar nor the Owner Trustee shall be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Securities Act of 1934, as amended,
applicable state securities law or the Investment Company Act of 1940, as
amended; PROVIDED, HOWEVER, that if a certificate or opinion is specifically
required to be
8 AMENDED AND RESTATED
TRUST AGREEMENT
delivered to the Owner Trustee or the Certificate Registrar by a purchaser or
transferee of a Certificate, the Owner Trustee shall be under a duty to examine
the same to determine whether it conforms to the requirements of this Trust
Agreement and shall promptly notify the party delivering the same if such
certificate or opinion does not so conform.
Section 3.05 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(a) any mutilated 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 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 written notice that such Certificate has been acquired by a protected
purchaser, the Owner Trustee, on behalf of the Issuer, shall execute and the
Owner Trustee or JPMorgan Chase, as the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new 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 Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership in
the Issuer, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 3.06 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Paying Agent may treat the Person in whose name any Certificate
is registered in the Certificate Register as the owner of such 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.
Notwithstanding the foregoing, in determining whether the Holders of the
requisite Percentage Interests of the Certificates have given any request,
demand, authorization, direction, notice, consent or waiver under any Basic
Document, Certificates owned by the Issuer, any obligor upon the Certificates,
the Servicer, the Depositor or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be outstanding; PROVIDED, HOWEVER, if the
Issuer, any other obligor upon the Certificates, the Depositor, the Servicer or
any Affiliate of any of the foregoing Persons own all of the Certificates, such
Certificates shall be deemed to be outstanding. Certificates owned by the
Issuer, any other obligor upon the Certificates, the Depositor, the Servicer or
any Affiliate of any of the foregoing Persons that have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Owner Trustee the pledgee's right so to act with respect to
such Certificates and that the pledgee is not the Issuer, any other obligor upon
the Certificates, the Depositor, the Servicer or any Affiliate of any of the
foregoing Persons.
Section 3.07 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Indenture Trustee, the Paying Agent and the Depositor, within
fifteen (15) days after receipt by the Owner Trustee of a written request
therefor from the Servicer, the Indenture Trustee, the Paying Agent or the
Depositor, a list, in such form as the Servicer, the Indenture Trustee, the
Paying Agent or the Depositor may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. The Certificate
Registrar shall also furnish to the Owner Trustee and
9 AMENDED AND RESTATED
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the Paying Agent a copy of such list at any time there is a change therein. If
(i) three (3) or more Certificateholders or (ii) one (1) or more
Certificateholders evidencing not less than 25% of the Percentage Interests in
the Certificates 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 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 (5)
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Certificateholders.
Each Certificateholder, by receiving and holding a Certificate, shall be deemed
to have agreed not to hold any of the Depositor, 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 was derived. The
Certificate Registrar shall upon the request of the Owner Trustee provide such
list, or access to such list, of Certificateholders as contemplated by this
Section 3.07.
Section 3.08 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall designate in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates JPMorgan Chase at the address set
forth in SECTION 11.04 hereof as the office for such purposes. The Owner Trustee
shall give prompt written notice to the Depositor and 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 JPMorgan Chase. As Paying Agent, JPMorgan Chase shall 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. JPMorgan Chase shall be permitted to resign as
Paying Agent upon thirty (30) days' prior written notice to the Owner Trustee.
In the event that JPMorgan Chase 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 hereunder 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 resignation or 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(b), (c), and (d), 7.04, 8.01 and 8.02 shall
apply to JPMorgan Chase in its role of Paying Agent and Certificate
10 AMENDED AND RESTATED
TRUST AGREEMENT
Registrar, for so long as JPMorgan Chase shall act as Paying Agent and
Certificate Registrar, to the Owner Trustee, if the Owner Trustee is appointed
to act 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. JPMorgan Chase is a
national banking association duly organized and validly existing in good
standing under the laws of the United States. JPMorgan Chase has all requisite
banking power and authority to execute, deliver and perform its obligations
under this Agreement.
Section 3.10 DEFINITIVE CERTIFICATES. The Certificates, upon
original issuance, will be issued in the form of a typewritten Certificate or
Certificates in the form attached hereto as Exhibit A to be delivered to the
related Certificateholders, by, or on behalf of, the Issuer. Such Certificate or
Certificates shall be registered on the Certificate Register in the name of the
holder thereof. The Certificates shall be printed, lithographed, typewritten or
engraved or may be produced in any other manner as is reasonably acceptable to
the Owner Trustee, as evidenced by its execution thereof.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 PRIOR NOTICE WITH RESPECT TO CERTAIN MATTERS. With
respect to the following matters, the Owner Trustee shall not take action unless
at least thirty (30) days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders of record as of the preceding Record
Date in writing of the proposed action and such Certificateholders specified in
Section 4.04 hereof shall not have notified the Owner Trustee in writing prior
to the thirtieth (30th) day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of the
Certificateholders;
(c) the amendment, change or modification of the Sale and
Servicing Agreement, except to cure any ambiguity or defect or to amend or
supplement any provision in a manner that would not materially adversely affect
the interests of the Certificateholder; or
(d) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note Registrar or the
Indenture Trustee of its obligations under the Indenture or this Agreement, as
applicable.
In addition, the Issuer shall not commingle its assets with those of any
other entity. The Issuer shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Issuer shall not pay the indebtedness,
11 AMENDED AND RESTATED
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operating expenses and liabilities of any other entity. The Issuer shall
maintain appropriate minutes or other records of all appropriate actions and
shall maintain its office separate from the offices of the Depositor and the
Servicer.
The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders pursuant to Section 4.04, and to the extent
otherwise consistent with the Basic Documents and permitted by applicable law,
to (i) remove or replace the Servicer or the Indenture Trustee, (ii) institute
proceedings to have the Owner Trustee or the Issuer declared or adjudicated
bankrupt or insolvent, (iii) consent to the institution of bankruptcy or
insolvency proceedings against the Owner Trustee or the Issuer, (iv) file a
petition or consent to a petition seeking reorganization or relief on behalf of
the Owner Trustee or the Issuer under any applicable federal or state law
relating to bankruptcy, (v) consent to the appointment of a conservator,
receiver, liquidator, assignee, trustee, sequestrator (or any similar official)
of the Owner Trustee or the Issuer or a substantial portion of the property of
the Owner Trustee or the Issuer, (vi) make any assignment for the benefit of the
Owner Trustee's or the Issuer's creditors, (vii) cause the Owner Trustee or the
Issuer to admit in writing its inability to pay its debts generally as they
become due, or (viii) take any action, or cause the Owner Trustee or the Issuer
to take any action, in furtherance of any of the foregoing (any of the above, a
"BANKRUPTCY ACTION"). So long as the Indenture remains in effect, no
Certificateholder shall have the power to take, and shall not take, any
Bankruptcy Action with respect to the Owner Trustee or the Issuer or direct the
Owner Trustee to take any Bankruptcy Action with respect to the Owner Trustee or
the Issuer. Additionally, the Owner Trustee shall not have the power to commence
a Bankruptcy Action without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certification certifying that such Certificateholder
reasonably believes that the Issuer is insolvent.
Section 4.02 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Article VIII 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
Certificateholders.
Section 4.03 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders 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 Issuer 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 4.04 MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Holders of Certificates evidencing not less than a majority of
the Percentage Interests in the Certificates. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Certificates evidencing not
less than a majority of the Percentage Interests in the Certificates at the time
of the delivery of such notice.
12 AMENDED AND RESTATED
TRUST AGREEMENT
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 ESTABLISHMENT OF TRUST ACCOUNT. The Paying Agent shall
establish and maintain on behalf of the Issuer 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 title of the Certificate Distribution Account shall be
"GS Auto Loan Trust 2006-1: Certificate Distribution Account for the benefit of
the Certificateholders."
The Issuer 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, on behalf of the Issuer, 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 Depositor 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 ten (10) Business Days (or such
longer period, not to exceed thirty (30) calendar days, as to which each Rating
Agency may consent) cause the Paying Agent to establish a new Certificate
Distribution Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments from the account that is no longer an Eligible Deposit
Account to such new Certificate Distribution Account.
Section 5.02 APPLICATION OF TRUST FUNDS.
(a) On each Payment Date, the Paying Agent shall distribute to
Certificateholders amounts deposited in the Certificate Distribution Account
pursuant to Section 8.2 of the Indenture with respect to such Payment Date.
(b) On each Payment Date, the Owner Trustee shall cause the Paying
Agent to send to each Certificateholder the statement or statements provided to
the Owner Trustee by the Indenture Trustee pursuant to Section 4.7 of the Sale
and Servicing Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the
Issuer's payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section 5.02. The Owner Trustee and the Paying Agent are
hereby authorized and directed to retain from amounts otherwise distributable to
the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Issuer (but such authorization shall not prevent the Owner
Trustee or the Paying Agent from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Owner Trustee on behalf of
the Issuer and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Certificateholder), the
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Owner Trustee or the Paying Agent may in its sole discretion withhold such
amounts in accordance with this paragraph (c).
(d) Any Holder of a Certificate which is organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date such
Holder becomes a Holder, (a) so notify the Owner Trustee and the Paying Agent,
(b) provide the Owner Trustee and the Paying Agent with Internal Revenue Service
Form W-8ECI or successor form. Any such Holder agrees by its acceptance of a
Certificate, on an ongoing basis, to provide like certification for each taxable
year and to notify the Owner Trustee and the Paying Agent should subsequent
circumstances arise affecting the information provided the Owner Trustee in
clauses (a) and (b) above. The Owner Trustee and the Paying Agent shall be fully
protected in relying upon, and each Holder by its acceptance of a Certificate
hereunder agrees to indemnify and hold the Owner Trustee and the Paying Agent
harmless against all claims or liability of any kind arising in connection with
or related to the Owner Trustee's and the Paying Agent's reliance upon any
documents, forms or information provided by any Holder to the Owner Trustee.
Section 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Payment 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
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
(5) Business Days prior to such Payment Date or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder 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 CERTIFICATEHOLDERS, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Issuer on a calendar year basis and the
accrual method of accounting, (b) deliver (or cause to delivered) to each
Certificateholder each Monthly Noteholder Report delivered to the Owner Trustee
pursuant to Section 4.7 of the Sale and Servicing Agreement, (c) deliver (or
cause to delivered) to each Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Schedule K-1 if the Issuer is treated as a partnership for federal
income tax purposes) to enable each Certificateholder to prepare its federal and
state income tax returns, (d) prepare (or cause to be prepared), file (or cause
to be filed) such tax returns relating to the Issuer (including a partnership
information return, IRS Form 1065 if the Issuer is treated as a partnership for
federal income tax purposes) 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 Issuer's characterization,
(e) cause such tax returns to be signed in the manner required by law and (f)
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
Certificateholders. The Owner Trustee shall elect under
14 AMENDED AND RESTATED
TRUST AGREEMENT
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 Issuer the tax
returns of the Issuer, if any, unless applicable law requires a
Certificateholder to sign such documents.
(b) In the event that the Issuer is treated as a partnership for
federal income tax purposes, the Depositor shall be designated the initial "tax
matters partner" of the Issuer 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 on behalf of the Issuer the Basic Documents to
which the Issuer 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
Issuer is to be a party together with any amendment or other agreement, in each
case, as evidenced conclusively by the Owner Trustee's execution thereof. In
addition to the foregoing, the Owner Trustee is authorized to take all actions
required of the Issuer pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action on behalf of the Issuer
as the Depositor directs with respect to and in accordance with the Basic
Documents (except to the extent that this Agreement expressly requires the
consent of Certificateholders for such action, in which case the Owner Trustee
shall not take such action without such consent).
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
Issuer is a party and to administer the Issuer in the interest of the
Certificateholders, 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 Certificateholders may, by written instruction, direct the
Owner Trustee in the management of the Issuer. Such direction may be exercised
at any time by written instruction of the Certificateholders 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.
15 AMENDED AND RESTATED
TRUST AGREEMENT
(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
Certificateholders of record as of the preceding Record Date requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction of
such Certificateholders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten (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
Certificateholders, 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
Certificateholders of record as of the preceding Record Date requesting
instruction and, to the extent that the Owner Trustee acts in good faith in
accordance with any such instruction received or, if instructed not to act, in
good faith refrains from acting, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten (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 Certificateholders, 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 Trust Property, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the Issuer 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, other than as set forth in Section 6.07, 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 Issuer 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 as may be necessary to discharge any Liens
on any part of the Trust Property that result from actions by, or claims
against, the Owner Trustee in its individual capacity that are not related to
the ownership or the administration of the Trust Property.
16 AMENDED AND RESTATED
TRUST AGREEMENT
Section 6.05 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Property 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 any provision of this Agreement.
Section 6.06 RESTRICTIONS. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Issuer set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee would
result in the Issuer's becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
Section 6.07 ADMINISTRATIVE DUTIES.
(a) The Owner Trustee shall prepare or shall cause the preparation
by other appropriate Persons (and such preparation shall not be the
responsibility of the Seller, the Depositor, the Indenture Trustee or the
Servicer) of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture with respect to the following matters under the
Indenture and the Sale and Servicing Agreement:
(i)(a) the appointment of a successor Note Registrar and
(b) giving the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Registrar
(Section 2.5 of the Indenture);
(ii) the delivery to any Holder of a Class D Note and
any prospective purchaser designated by such Holder, upon request of such
Holder or such prospective purchaser, such information in the possession
of the Owner Trustee required by Rule 144A as will enable the resale of
such Class D Notes to be made pursuant to Rule 144A (Section 2.5 of the
Indenture);
(iii) the delivery for cancellation of any Note
delivered to the Issuer for cancellation, and the direction to destroy or
return such Note (Section 2.9 of the Indenture);
(iv) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.13 of the
Indenture);
(v) the designation of an office in the Borough of
Manhattan, City of New York, for registration of transfer or exchange of
Notes (Section 3.2 of the Indenture);
(vi) the preparation of an Issuer Order directing the
Paying Agent to deposit with the Indenture Trustee all sums held in trust
by such Paying Agent (Sections 3.3 and 4.3 of the Indenture);
17 AMENDED AND RESTATED
TRUST AGREEMENT
(vii) the preparation of an Issuer Order directing the
Indenture Trustee to provide notification of any unclaimed monies and
repayments (Section 3.3 of the Indenture);
(viii) upon request, assist in the obtaining and
preservation of the Issuer's qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Trust
Property (Section 3.4 of the Indenture);
(ix) the preparation of all supplements and amendments
to the Indenture, instruments of further assurance and other instruments
and the taking of such other action as is necessary or advisable to
protect the Trust Property, including the preparation and filing of any
financing statements and continuation statements (Section 3.5 of the
Indenture);
(x) the delivery of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as to the
Trust Property, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections 3.6
and 3.9 of the Indenture);
(xi) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligations
under the Indenture (Section 3.10 of the Indenture);
(xii) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer under the Sale and Servicing
Agreement (Section 3.19 of the Indenture);
(xiii) the execution of any further instruments and the
performance of any acts reasonably necessary to carry out more effectively
the purpose of the Indenture (Section 3.5 of the Indenture);
(xiv) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of an Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.1 of the Indenture);
(xv) the preparation, obtaining or filing of
instruments, opinions, certificates and other documents required for the
release of Collateral (Section 2.10 of the Indenture);
(xvi) upon its actual knowledge of such, the delivery to
the Indenture Trustee of written notice in the form of an Officer's
Certificate of any event that with the giving of notice and the lapse of
time would become an
18 AMENDED AND RESTATED
TRUST AGREEMENT
Event of Default under clause (iii) or (iv) of Section 5.1 of the
Indenture (Section 5.1 of the Indenture);
(xvii) the performance of any lawful action as the
Controlling Class may request to compel or secure the performance and
observance by the Receivables Servicers or the Servicer, as applicable, of
each of their obligations to the Issuer in the Basic Documents (Section
5.16 of the Indenture);
(xviii) upon the request of the Indenture Trustee,
provide the Indenture Trustee with the information necessary to deliver to
each Noteholder such information as may be reasonably requested to enable
such Holder to prepare its United States federal and state and local
income or franchise tax returns (Section 6.6 of the Indenture);
(xix) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the appointment of
a successor Indenture Trustee (Section 6.8 of the Indenture);
(xx) the preparation of any written instruments required
to confirm more fully the authority of any co-trustee or separate trustee
and any written instructions necessary in connection with the resignation
or removal of any co-trustee or separate trustee (Sections 6.8 and 6.10 of
the Indenture);
(xxi) upon its actual knowledge of such, the
notification to the Indenture Trustee if and when the Notes are listed on
any stock exchange (Section 7.4 of the Indenture);
(xxii) the preparation of an Issuer Order and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Property
(Sections 8.4 and 8.5 of the Indenture);
(xxiii) the preparation of Issuer Order and the
obtaining of Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3 of the
Indenture);
(xxiv) the delivery of new Notes conforming to any
supplemental indenture (Section 9.6 of the Indenture);
(xxv) the duty to furnish to the Rating Agencies and the
Indenture Trustee notice of redemption of Notes (Section 10.1 of the
Indenture);
19 AMENDED AND RESTATED
TRUST AGREEMENT
(xxvi) the duty to notify Noteholders of redemption of
the Notes or to cause the Indenture Trustee to provide such notification
(Section 10.2 of the Indenture);
(xxvii) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to take any
action under the Indenture (Section 11.1 of the Indenture);
(xxviii) the preparation and delivery of all Officer's
Certificates and the obtaining of Independent Certificates, if necessary,
for the release of property from the lien of the Indenture (Section 11.1
of the Indenture);
(xxix) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements or requests by the Noteholders
with respect to alternate payment and notice provisions (Section 11.6 of
the Indenture);
(xxx) the recording of the Indenture, if applicable
(Section 11.15 of the Indenture);
(xxxi) notification to the Certificateholders of the
substance of any amendment to the Sale and Servicing (Section 9.1(e) of
the Sale and Servicing Agreement);
(xxxii) preparation and filing of UCC continuation
statements and delivery of copies thereof (Section 4.2 of the Receivables
Purchase Agreements, Section 9.2 of the Sale and Servicing Agreement and
Section 3.5 of the Indenture); and
(xxxiii) delivery of prior written notice of amendments
to the Rating Agencies (Section 4.1(d) of the Receivables Purchase
Agreements) and delivery of notice of substance of amendments to the
Indenture Trustee and the Rating Agencies (Section 4.1(e) of the
Receivables Purchase Agreements).
For avoidance of doubt, the UCC financing statements with respect to which
the Owner Trustee is required to file continuation statements under the Basic
Documents are the UCC financing statements set forth in Exhibit D-1, Exhibit D-2
and Exhibit D-3.
(b) The Owner Trustee shall receive as compensation for its
services hereunder such fees as have been separately agreed upon before the date
hereof among the Depositor and the Owner Trustee, and the Owner Trustee shall be
reimbursed for its other reasonable expenses hereunder in the priority set forth
in Section 8.2(c) of the Indenture. In performing its duties under Section 5.05
or 6.07, the Owner Trustee shall be entitled to the indemnification provided by
the Issuer under Section 8.02 of this Agreement, in the priority set forth in
Section 8.2(c) of the Indenture.
(c) It is understood and agreed that the Owner Trustee shall be
entitled to engage outside counsel, independent accountants and other experts to
assist the Owner Trustee in
20 AMENDED AND RESTATED
TRUST AGREEMENT
connection with the performance of its duties set forth in Sections 5.05 and
6.07, including the preparation of all tax reports and returns, securities law
filings, Opinions of Counsel and Independent Certificates and the Owner Trustee
shall be reimbursed for the expenses of such experts in accordance with the
priority set forth in Section 8.2(c) of the Indenture. The Owner Trustee shall
not be obligated to engage any expert or perform any duty as required under
Sections 5.05 and 6.07 for which reimbursement would exceed $1,000 until such
amount has been paid to the Owner Trustee, if payment of such reimbursable
amount is required of the Owner Trustee prior to the next Payment Date.
(d) The Depositor and the Indenture Trustee shall furnish to the
Owner Trustee from time to time such additional information regarding the Issuer
or the Basic Documents as the Owner Trustee shall reasonably request. The
Indenture Trustee shall furnish to the Owner Trustee upon request a copy of the
Note Register.
(e) The Owner Trustee shall not be responsible for taking any
action with respect to this Section 6.07 unless a responsible officer in the
Corporate Trust Administration Department of the Owner Trustee has actual
knowledge or has received written notice of the need to take such action.
(f) The rights and protections afforded to the Owner Trustee
pursuant to Article VII of this Agreement shall also be afforded to the Owner
Trustee with respect to the performance of its administrative duties under this
Section 6.07.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Property upon the terms of the Basic Documents
and this Agreement. The Owner Trustee, in its individual capacity, shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or gross negligence
(except as provided in Section 7.01(g)) 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 its individual capacity. 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 good faith in accordance with the
instructions of the Depositor or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the
21 AMENDED AND RESTATED
TRUST AGREEMENT
performance of any of its rights or powers hereunder or under any Basic Document
if the Owner Trustee shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(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 Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Property, or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Certificates, and the Owner Trustee, in its individual capacity, shall in
no event assume or incur any liability, duty or obligation to any Noteholder or
to any Certificateholder, other than as expressly provided for herein or
expressly agreed to in the other Basic Documents;
(f) the Owner Trustee shall not be responsible for monitoring the
performance of, and shall not be liable for the default or misconduct of the
Depositor, the Servicer, the Indenture Trustee or any other Person under any of
the Basic Documents or otherwise, and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Issuer under this Agreement or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture or the Depositor or the Servicer 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 Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security, in its individual capacity, or indemnity satisfactory to
it against the costs, expenses and liabilities that may be incurred by the Owner
Trustee, in its individual capacity, 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 gross negligence or willful misconduct in the
performance of any such act.
Section 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
Section 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee, in
its individual capacity, hereby represents and warrants to the Depositor, for
the benefit of the Certificateholders, that:
22 AMENDED AND RESTATED
TRUST AGREEMENT
(a) It is a Delaware 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 the Basic Documents, and this
Agreement and the Basic Documents will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement and the
Basic Documents on its behalf.
(c) This Agreement constitutes a legal, valid and binding
obligation of the Owner Trustee, enforceable against the Owner Trustee in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights of
creditors of banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution or the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby, nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
(e) It is a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least "A-1"
by Standard & Poor's and "P-1" by Moody's or who is otherwise acceptable to each
Rating Agency.
(f) Any information it provides pursuant to the Securitization
Cooperation Annex of this Agreement is accurate and complete and contains no
untrue statement of material fact or omission to state a material fact necessary
in order to make the statement, in light of the circumstances in which it was
made, not misleading.
Section 7.04 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee (either in its individual capacity or as
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
23 AMENDED AND RESTATED
TRUST AGREEMENT
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
reasonably and 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 expressly
provided in this Article VII, in accepting the trusts hereby created, Wilmington
Trust Company 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 Trust Property for payment or satisfaction thereof.
Section 7.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR FOR
RECEIVABLES. The recitals contained herein and in the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor, and the Owner Trustee assumes
no responsibility for the correctness thereof. Except as set forth in Section
7.03, the Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of the Owner Trustee on the
Certificates) or the Notes, or of any Receivable or 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 Trust Property or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement or the 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 Issuer or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor 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 CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would have
if it were not Owner Trustee.
24 AMENDED AND RESTATED
TRUST AGREEMENT
Section 7.08 DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
consent or approval or authorization or order of, or the giving of notice to, or
the registration with, or the taking of any other action in required by, any
state or other governmental authority or agency of any jurisdiction other than
the State of Delaware; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by Wilmington Trust Company or the Owner Trustee; or (iii) subject Wilmington
Trust Company or the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by Wilmington Trust Company or
the Owner Trustee, as the case may be, contemplated hereby. The Owner Trustee
shall be entitled to obtain advice of counsel (which advice shall be an expense
of the Trust under Section 8.01 of this Agreement) to determine whether any
action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee will appoint an additional
trustee pursuant to Section 10.05 hereof to proceed with such action.
Section 7.09 PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING
AGENT. The rights and protections afforded to the Owner Trustee pursuant to this
Article VII and Sections 8.02, 10.02, and 10.03 shall also be afforded to the
Paying Agent, authenticating agent and Certificate Registrar.
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 Depositor and the
Owner Trustee, and the Owner Trustee shall be reimbursed 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, in the priority set forth in Section 8.2(c) of
the Indenture.
Section 8.02 INDEMNIFICATION. The Issuer shall indemnify the Owner
Trustee, JPMorgan Chase and their respective 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, JPMorgan Chase or any Indemnified Party in any way
relating to or arising out of this Agreement, the Basic Documents, the Trust
Property, the administration of the Trust Property or the action or inaction of
the Owner Trustee hereunder, PROVIDED, that that the Issuer shall not be liable
for or required to indemnify an Indemnified Party from or against Expenses
arising or
25 AMENDED AND RESTATED
TRUST AGREEMENT
resulting from (i) the willful misconduct, gross negligence or bad
faith of the Owner Trustee, (ii) the inaccuracy of a representation or warranty
made by the Owner Trustee in Section 7.03 or JPMorgan Chase in Section 3.09 or
(iii) the inaccuracy of any information provided by the Owner Trustee pursuant
to the Securitization Cooperation Annex of this Agreement, and PROVIDED,
FURTHER, that the Owner Trustee shall indemnify the Issuer from and against any
Expenses (as defined in this Section 8.02) arising from the inaccuracy or
incompleteness of any information provided by the Owner Trustee pursuant to the
Securitization Cooperation Annex of this Agreement, or any act or omission on
the part of the Owner Trustee pursuant to the Securitization Cooperation Annex
to this Agreement. 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 Indemnified Party's choice of legal
counsel shall be subject to the approval of the Issuer, which approval shall not
be unreasonably withheld.
Section 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid
pursuant to this Article VIII shall be payable solely in the priority set forth
in Section 8.2(c) of the Indenture and shall be deemed not to be a part of the
Trust Property 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 Issuer shall
terminate and be of no further force or effect upon the final distribution by
the Owner Trustee of all moneys or other property or proceeds of the Trust
Property in accordance with the terms of the Indenture, Article V of the Sale
and Servicing Agreement and the Statutory Trust Statute. Any money or other
property held as part of the Owner Trust Property following such distribution
shall be distributed to the Depositor. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Issuer, (ii) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Issuer or Trust Property or (iii) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) This Agreement and the Issuer are irrevocable. Except as
provided in Section 9.01(a) and in this Section 9.01(b), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Issuer or
this Agreement.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice of
such termination from the Issuer or the Indenture Trustee given pursuant to
Section 8.1 of the Sale and Servicing Agreement, stating (i) the Payment Date
upon or with respect to which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the
26 AMENDED AND RESTATED
TRUST AGREEMENT
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Paying Agent therein specified. The Owner Trustee shall give
such notice to the Certificate Registrar (if other than the Owner Trustee) and
the Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six (6) 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
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Issuer after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
Depositor, subject to applicable escheat laws.
(d) Upon the winding up of the Issuer in accordance with the
Statutory Trust Statute (including, without limitation, the reasonable provision
for payment of all obligations of the Issuer in accordance with Section 3808(e)
of the Statutory Trust Statute), the Owner Trustee shall cause the Certificate
of Trust to be canceled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of Section 3810 of the
Statutory Trust Statute and thereupon the Owner Trust and this Agreement (other
than Article VIII) shall terminate.
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 Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least "P-1"
by Moody's and at least "A-1" by Standard & Poor's, or which is otherwise
acceptable to each Rating Agency. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.
Section 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Indenture Trustee and the
Rating Agencies. Upon receiving such
27 AMENDED AND RESTATED
TRUST AGREEMENT
notice of resignation, the Depositor 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 thirty (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, PROVIDED,
HOWEVER, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
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 Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
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 Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.01 or 10.02 shall execute, acknowledge and
deliver to the Depositor, the Indenture Trustee 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 and statements and monies held by it under this Agreement; and the
Depositor and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible as a successor Owner Trustee pursuant to Section 10.01.
28 AMENDED AND RESTATED
TRUST AGREEMENT
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice thereof to all Certificateholders,
the Servicer, the Indenture Trustee, the Noteholders and the Rating Agencies. If
the Depositor shall fail to mail such notice within ten(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 Issuer.
Any successor Owner Trustee appointed pursuant to this Section 10.03 shall
promptly file an amendment to the Certificate of Trust with the Secretary of
State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
Section 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, 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 each Rating Agency; and PROVIDED, FURTHER, that
such successor Owner Trustee shall file an amendment to the Certificate of Trust
as described in Section 10.03.
Section 10.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Owner Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee or separate
trustees, of all or any part of the Trust Property, and to vest in such Person,
in such capacity, such title to the Trust Property or any part thereof and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor Owner Trustee pursuant
to Section 10.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
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 Trust Property 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;
29 AMENDED AND RESTATED
TRUST AGREEMENT
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) the Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee 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. Any term or provision of
this Agreement may be amended by the Depositor and the Owner Trustee without the
consent of the Indenture Trustee, any Noteholder, any Certificateholder, the
Issuer or any other Person; provided that such amendment shall not, as evidenced
by an Opinion of Counsel delivered to the Indenture Trustee and to that effect,
materially and adversely affect the interests of the Noteholders or the
Certificateholders. An amendment shall be deemed not to materially and adversely
affect the interests of the Noteholders or the Certificateholders and no Opinion
of Counsel to that effect shall be required if the Rating Agency Condition is
satisfied with respect to such amendment.
Any term or provision of this Agreement may be amended by the Depositor
and the Owner Trustee without the consent of the Indenture Trustee, any
Noteholder, any Certificateholder, the Issuer or any other Person to add, modify
or eliminate any provisions as may be necessary or advisable in order to enable
the Depositor, the Servicer or any of their Affiliates to comply with or obtain
more favorable treatment under any law or regulation or any accounting rule or
principle, it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied.
30 AMENDED AND RESTATED
TRUST AGREEMENT
Any term or provision of this Agreement may be amended from time to
time by the Depositor and the Owner Trustee and with the consent of (i) the
Noteholders of Notes evidencing not less than a majority of the principal amount
of each Class of Notes, and (ii) the Certificateholders of Certificates
evidencing not less than a majority of the Percentage Interests (which consent
of any holder of a Note or holder of a Certificate given pursuant to this
Section 11.01 or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Note or Certificate, as the case may be, and on
all future holders of such Note or holders of such Certificate, as the case may
be, and of any Note or Certificate, as applicable, issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon such Note or the Certificate), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that the consent of
the Noteholders shall not be required with respect to any amendment that does
not adversely affect the interests of the Noteholders and the consent of the
Certificateholders shall not be required with respect to any amendment that does
not adversely affect the interests of the Certificateholders; provided, further,
however, that no such amendment shall (A) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, or change the allocation or
priority of, collections of payments on Receivables or distributions that shall
be required to be made on any Note or Certificate or change any Note Interest
Rate, without the consent of all Noteholders or Certificateholders or (B) reduce
the aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes affected thereby and holders of all
Certificates affected thereby.
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 Rating Agency.
It shall not be necessary for the consent of Certificateholders or
Noteholders 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 or Noteholders 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 and that all conditions precedent (if
any) to such amendment specified in this Agreement have been met. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02 NO LEGAL TITLE TO TRUST PROPERTY IN
CERTIFICATEHOLDERS. Neither the Depositor nor the Certificateholders shall have
legal title to any part of the Trust Property. The
31 AMENDED AND RESTATED
TRUST AGREEMENT
Certificateholders 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 Certificateholders to and in their undivided ownership interest
in the Trust Property 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 Trust Property.
Section 11.03 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the Depositor,
the Certificateholders, the Paying Agent, the Certificate Registrar and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Property 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 (3) Business Days after mailing if mailed by
first-class 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; if to the Depositor, addressed
to Xxxxxxx Xxxxx Asset Backed Securities Corp, Attention: Xxxxxx Xxxxx; if to
JPMorgan Chase, addressed to JPMorgan Chase Bank, National Association, 0 Xxx
Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Worldwide Securities
Services/Global Debt - GSALT 2006-1, with a copy of all notices, directions,
instructions or requests to 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Worldwide Securities Services/Global Debt - GSALT 2006-1; 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 Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not such
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 provision 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.
32 AMENDED AND RESTATED
TRUST AGREEMENT
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
Depositor and its permitted assignees, the Owner Trustee and its successors and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 11.08 COVENANTS OF THE DEPOSITOR. The Depositor will not at
any time institute against the Issuer any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
Section 11.09 NO PETITION. (a) The Owner Trustee, by entering into
this Agreement, each Certificateholder, by accepting a Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Issuer or join in any institution against the
Depositor or the Issuer of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, this Agreement or any of the Basic
Documents.
(b) The Depositor's obligations under this Agreement are
obligations solely of the Depositor and will not constitute a claim against the
Depositor to the extent that the Depositor does not have funds sufficient to
make payment of such obligations. In furtherance of and not in derogation of the
foregoing, each of the Owner Trustee (in its individual capacity and as the
Owner Trustee), by entering into or accepting this agreement, the
Certificateholder, by accepting the Certificate, and the Indenture Trustee and
each Noteholder or Note Owner, by accepting the benefits of this Agreement,
hereby acknowledges and agrees that such Person has no right, title or interest
in or to the Other Assets of the Depositor. To the extent that, notwithstanding
the agreements and provisions contained in the preceding sentence, each of the
Owner Trustee, the Indenture Trustee, each Noteholder or Note Owner and the
Certificateholder either (i) asserts an interest or claim to, or benefit from,
Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit
in or from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then such Person further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is and
will be expressly subordinated to the indefeasible payment in full, which, under
the terms of the relevant documents relating to the securitization or conveyance
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to a priority of
distributions or application under applicable law, including insolvency laws,
and whether or not asserted against the Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement will be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each of the Owner Trustee (in
its individual capacity and as the Owner Trustee), by entering into or accepting
this agreement, the Certificateholder, by accepting the Certificate, and the
Indenture Trustee and each Noteholder or Note Owner, by accepting the benefits
of this Agreement, hereby further acknowledges and agrees that no
33 AMENDED AND RESTATED
TRUST AGREEMENT
adequate remedy at law exists for a breach of this Section and the terms of this
Section may be enforced by an action for specific performance. The provisions of
this Section will be for the third party benefit of those entitled to rely
thereon and will survive the termination of this Agreement.
Section 11.10 NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificate represents a beneficial interest
in the Issuer only and does not represent an interest in or an obligation of the
Depositor, the Servicer, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof 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 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; WAIVER OF JURY TRIAL.
(a) 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.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY.
Section 11.13 CERTIFICATE TRANSFER RESTRICTIONS.
(a) The Certificates may not be acquired by or for the account of
(i) an employee benefit plan (as defined in Section 3(3) of ERISA) whether or
not 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 investment by an employee benefit plan or other
plan in the entity (each, a "Benefit Plan"). By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
(b) Each purchaser or transferee of Certificates or any beneficial
interest therein must represent as follows: (i) that it is purchasing one or
more Certificates, in an authorized denomination, for its own account as the
sole beneficial owner, (ii) either it is not, for federal income tax purposes, a
partnership, grantor trust, or S Corporation (as defined in the Code) (any such
entity, a "PASS-THROUGH ENTITY") or it is a Pass-Through Entity, but after
giving effect to such purchase of such Certificates less than 50% of the value
of each beneficial ownership interest in such Pass-Through Entity is
attributable to the Certificates and/or the
34 AMENDED AND RESTATED
TRUST AGREEMENT
Notes, and (iii) such Certificates have not been transferred through an
"established securities market" within the meaning of Section 7704(b) of the
Code. For the avoidance of doubt, a person making the foregoing representation
shall be deemed to constitute one "owner of beneficial interests" for purposes
of clause (c) below and for purposes of any other provision of this Trust
Agreement or any other Basic Document that references beneficial ownership for
purposes of Section 1.7704-1(h) of the Treasury Regulations. The Certificates
can only be purchased, acquired, or held by an individual or entity who is a
"U.S. person" as determined for U.S. federal income tax purposes or who holds
the trust certificates in connection with the conduct of a trade or business
within the united states and who delivers, to the owner trustee and the entity
acting as certificate registrar under the trust agreement, a properly executed
form W-8ECI in connection with their acquisition of the trust certificates and
at such other times as reasonably requested by the owner trustee or the entity
acting as certificate registrar under the trust agreement or as required by law.
(c) No purchase or transfer shall be permitted, nor registered by
the Certificate Registrar, if such purchase or transfer would result in there
being more than 95 owners of beneficial interests in the Certificates for
purposes of Section 1.7704-1(h) of the Treasury Regulations. In determining
whether this condition is satisfied in connection with any purchase or transfer,
the Certificate Registrar shall be permitted to conclusively rely upon the
Investment Letters provided by the respective Certificateholders with respect to
interests in the Certificates.
Section 11.14 XXXXXXXX-XXXXX. Notwithstanding anything contained
herein or in any other Basic Document to the contrary, the Owner Trustee shall
not be required to execute, deliver or certify on behalf of the Issuer or any
other Person any filings, certificates, affidavits or other instruments
(including, without limitation, any Xxxxxxxx-Xxxxx Certification) required under
the Xxxxxxxx-Xxxxx Act of 2002.
Section 11.15 ACCEPTANCE OF TERMS OF AGREEMENT. The receipt and
acceptance of a Certificate by a Certificateholder, without any signature or
further manifestation of assent, shall constitute the unconditional acceptance
by the Certificateholder of all the terms and provisions of this Agreement, and
shall constitute the agreement of the Certificateholder that the terms and
provisions of this Agreement shall be binding, operative and effective as
between the Owner Trustee and the Certificateholder.
Section 11.16 SUBORDINATION AGREEMENT. Each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that, to the extent it is
deemed to have any interest in any assets of the Depositor, or a securitization
vehicle (other than the Issuer) related to the Depositor, dedicated to other
debt obligations of the Depositor or debt obligations of any other
securitization vehicle (other than the Issuer) related to the Depositor, its
interest in those assets is subordinate to claims or rights of such other
debtholders to those other assets. Furthermore, each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that such agreement
constitutes a subordination agreement for purposes of Section 510(a) of the
Bankruptcy Code.
Section 11.17 RULE 144A INFORMATION. So long as the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a
Certificateholder, or a Holder of Class D Notes, the Depositor shall promptly
furnish to such Certificateholder or Holder, as the
35 AMENDED AND RESTATED
TRUST AGREEMENT
case may be, and to a prospective purchaser of such Certificate or Class D Note,
as applicable, designated by such Certificateholder or Holder, as applicable,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to permit compliance with Rule 144A in connection with resales of
the Certificates or Class D Notes, as applicable, in accordance with the terms
hereof (such information to consist of a copy of the Memorandum together with
all financial statements of the Issuer, if any, then available).
Section 11.18 SECURITIZATION COOPERATION ANNEX. The Owner Trustee
agrees to comply with the requirements of the Securitization Cooperation Annex,
which is attached hereto and incorporated herein.
[SIGNATURES FOLLOW]
36 AMENDED AND RESTATED
TRUST AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
XXXXXXX SACHS ASSET BACKED
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
S-1 AMENDED AND RESTATED
TRUST AGREEMENT
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
S-2 AMENDED AND RESTATED
TRUST AGREEMENT
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, solely for the purposes of accepting
(i) the appointment to act as Certificate Registrar pursuant to Section 3.04,
(ii) the appointment to act as Paying Agent pursuant to Section 3.09, (iii) the
designation of its office pursuant to Section 3.08 and (iv) its duties under
Section 6.07(d)
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S-3 AMENDED AND RESTATED
TRUST AGREEMENT
SECURITIZATION COOPERATION ANNEX
This Securitization Cooperation Annex (this "ANNEX") is incorporated into
the Amended and Restated Trust Agreement dated as of August 2, 2006 between
Wilmington Trust Company, a Delaware banking corporation (the "OWNER TRUSTEE"),
and Xxxxxxx Xxxxx Asset Backed Securities Corp., a Delaware corporation (the
"DEPOSITOR"), which together with the Original Trust Agreement (as defined in
the Amended and Restated Trust Agreement), establishes and continues GS Auto
Loan Trust 2006-1, a Delaware statutory trust (the "ISSUER").
Section 1. INTENT OF THE PARTIES; REASONABLENESS.
The Depositor and the Owner Trustee acknowledge and agree that
the purpose of this Annex is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
The Depositor shall not exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than the Depositor's compliance with the Securities Act, the
Securities Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Owner Trustee agrees to cooperate
in good faith with any reasonable request by the Depositor for information
regarding the Owner Trustee which is required in order to enable the Depositor
to comply with the provisions of Regulation AB, including, without limitation,
Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB as it relates to the
Owner Trustee or to the Owner Trustee's obligations under this Agreement.
Section 2. INFORMATION TO BE PROVIDED BY THE OWNER TRUSTEE.
For so long as the Issuer is required to report under
Regulation AB, the Owner Trustee shall, as promptly as practicable, notify the
Depositor, in writing, of: (i) the commencement of, a material development in
or, if applicable, the termination of, any and all legal proceedings against the
Owner Trustee or any and all proceedings of which any property of the Owner
Trustee is the subject, that is material to the noteholders; and (ii) any such
proceedings known to be contemplated by governmental authorities. The Owner
Trustee shall also notify the Depositor, in writing, as promptly as practicable
following notice to or discovery by a Responsible Officer of the Owner Trustee
of any material changes to proceedings described in the preceding sentence. In
addition, the Owner Trustee will furnish to the Depositor, in writing, the
necessary disclosure regarding the Owner Trustee describing such proceedings
required to be disclosed under Item 1117 of Regulation AB, for inclusion in
reports filed by or on behalf of the Depositor pursuant to the Exchange Act.
For so long as the Issuer is required to report under
Regulation AB, the Owner Trustee shall (i) on or before the fifth Business Day
of each month, provide to the Depositor such information regarding the Owner
Trustee as is required for the purpose of compliance with Items 1109(a), 1109(b)
and 1119 of Regulation AB; PROVIDED, HOWEVER , the Owner Trustee shall not be
required to provide such information in the event that there has been no change
to the information previously provided by the Owner Trustee to the Depositor;
and (ii) as promptly as practicable following notice to or discovery by a
Responsible Officer of the
AMENDED AND RESTATED
TRUST AGREEMENT
Owner Trustee of any changes to such information, provide to the Depositor, in
writing, such updated information. Such information shall include, at a minimum:
(A) the Owner Trustee's name and form of organization;
(B) a description of the extent to which the Owner Trustee has had
prior experience serving as a trustee for asset-backed securities transactions
involving auto receivables; and
(C) a description of any affiliation between the Owner Trustee and
any of the following parties to a Securitization Transaction, as such parties
are identified by name to the Owner Trustee by the Depositor in writing in
advance of such Securitization Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any
Securitization Transaction.
In addition, the Owner Trustee shall provide a description of
whether there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner Trustee
and any above-listed party that is entered into outside the ordinary course of
business or is on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the Securitization
Transactions, that currently exists or that existed during the past two years
and that is material to an investor's understanding of the asset-backed
securities.
Section 3. DEFINITIONS
As used in this Annex, "Securitization Transaction" shall mean any
transaction involving a sale or other transfer of receivables directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated asset-backed securities.
AMENDED AND RESTATED
TRUST AGREEMENT
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATE TO THE NOTES, AS SET FORTH IN THE SALE AND
SERVICING AGREEMENT.
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE. ACCORDINGLY, TRANSFER OF THIS TRUST CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN SECTION 2.5 OF THE INDENTURE AND SECTION 3.04 OF THE
TRUST AGREEMENT. BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE HOLDER OF THIS
TRUST CERTIFICATE IS DEEMED TO REPRESENT TO THE DEPOSITOR THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM IS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") AND IS ACQUIRING THIS TRUST CERTIFICATE
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS).
NO SALE, PLEDGE OR OTHER TRANSFER OF A TRUST CERTIFICATE SHALL BE MADE
UNLESS SUCH SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE TRUST
CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT TO A PERSON THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION. EACH
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS TRUST CERTIFICATE SHALL BE DEEMED TO
MAKE THE FOREGOING REPRESENTATIONS. THE DEPOSITOR MAY REQUIRE AN OPINION OF
COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF THE TRUST
CERTIFICATES PURSUANT TO CLAUSE (C) ABOVE.
BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE HOLDER AND ANY SUBSEQUENT
TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT AND IS NOT ACTING
ON BEHALF OF OR INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA")) WHETHER OR NOT SUBJECT TO TITLE I OF ERISA, (B) PLAN (AS
DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED),
OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN IN SUCH ENTITY,
A-1
INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL
ACCOUNT.
THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
A-2
NUMBER R-___ PERCENTAGE INTEREST: [ ]%
GS AUTO LOAN TRUST 2006-1 CERTIFICATE evidencing a fractional undivided
beneficial interest in the Issuer, as defined below, the property of which
includes a pool of motor vehicle retail installment sale contracts and loans,
secured by security interests in the new and used automobiles and light-duty
trucks financed thereby, conveyed by Xxxxxxx Sachs Asset Backed Securities Corp.
to the Issuer. The property of the Issuer has been pledged to the Indenture
Trustee pursuant to the Indenture.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION
OF XXXXXXX XXXXX MORTGAGE COMPANY, XXXXXXX SACHS ASSET BACKED SECURITIES CORP.
OR ANY OF THEIR RESPECTIVE AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner of a ____%
PERCENT nonassessable, fully paid, undivided percentage interest in GS AUTO LOAN
TRUST 2006-1, a Delaware statutory trust (the "ISSUER"), formed by XXXXXXX XXXXX
ASSET BACKED SECURITIES CORP., a Delaware corporation (the "DEPOSITOR").
The Issuer was created pursuant to a Trust Agreement amended and restated
as of August 2, 2006 (as amended, supplemented or otherwise modified from time
to time, the "TRUST AGREEMENT"), between the Depositor and Wilmington Trust
Company, as owner trustee (the "OWNER TRUSTEE"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Trust Agreement or the Sale and Servicing Agreement dated as of
August 2, 2006 (as amended, supplemented or otherwise modified from time to
time, the "SALE AND SERVICING AGREEMENT"), among the Issuer, the Depositor,
Xxxxxxx Sachs Mortgage Company, as Servicer, Wilmington Trust Company, as Owner
Trustee, and JPMorgan Chase Bank, National Association, as Indenture Trustee.
This Certificate is one of the duly authorized Certificates designated as
"Asset Backed Certificates" (herein called the "CERTIFICATES"). Also issued
under an Indenture dated as of August 2, 2006 (as amended, supplemented or
otherwise modified from time to time, the "INDENTURE"), between the Issuer and
JPMorgan Chase Bank, National Association, as indenture trustee, are the Notes.
This 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
Certificate by virtue of its acceptance hereof assents and by which such
Certificateholder is bound. The property of the Issuer consists of the Trust
Property. The rights of the Certificateholders are subordinate to the rights of
the Noteholders, as set forth in the Indenture.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day
(each, a "PAYMENT DATE"), commencing on [___________], to the Person in whose
name this Certificate is registered on the last day of the immediately preceding
month (the "RECORD DATE"), such Certificateholder's fractional undivided
interest in the amount to be distributed to Certificateholders on such Payment
Date.
A-3
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinate to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
It is the intent of the Depositor and the Certificateholders that, solely
for income and franchise tax purposes: (1) if there is one beneficial owner of
the Certificates, the Issuer shall be treated as a disregarded entity, and (2)
if there is more than one beneficial owner of the Certificates, the Issuer shall
be treated as a partnership for income and franchise tax purposes, with the
assets of the partnership being the Receivables and other assets held by the
Issuer, the partners of the partnership being the Certificateholders, and the
Notes being debt of the partnership. A Certificateholder, by its acceptance of a
Certificate, agrees to treat, and to take no action inconsistent with such
treatment of the Issuer.
A Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Depositor, the Owner Trustee or the Issuer, or join in any institution against
the Depositor, the Owner Trustee or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, the
Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee or the Paying Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Certificate or the making of any notation
hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
designated 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 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 or the authenticating agent, by
manual signature, this 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.
A-4
IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee of GS AUTO LOAN TRUST 2006-1
Dated: _____________, 2006 By: ___________________________________
Authorized Signatory
A-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY, or WILMINGTON TRUST COMPANY,
as Owner Trustee as Owner Trustee
By: JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
as Authenticating Agent
By: _________________________________ By: ________________________________
Authorizing Agent Authorizing Agent
A-6
[REVERSE OF TRUST CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Servicer, the Owner Trustee in its individual capacity or any
affiliates of any of them 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 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
Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions provided therein, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee, with prior written notice to
each Rating Agency, 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 Percentage Interests in the Certificates, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Trust Agreement or of modifying in any manner the
rights of the Noteholders or the Certificateholders. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and on
all future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar designated 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
Certificates of authorized denominations evidencing the same aggregate interest
in the Issuer will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is JPMorgan Chase
Bank, National Association.
Except as provided in the Trust Agreement, the Certificates are issuable
only as registered Certificates without coupons in minimum denominations of one
percent Percentage Interest. As provided in the Trust Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Certificateholder 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.
A-7
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 Trust Property. The Servicer of the Receivables and, under certain
circumstances, Certificateholders, may at their option purchase the Trust
Property at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Issuer will effect early
retirement of the Certificates; PROVIDED, HOWEVER, that such right of purchase
is exercisable only as of the Determination Date as of which the Pool Balance is
less than or equal to 10% of the Initial Pool Balance.
The Certificates may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) whether or not 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 investment
by an employee benefit plan or other plan in the entity (each, a "BENEFIT
PLAN"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
A-8
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________, attorney, to transfer said 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 of
the registered owner as it appears on the face of the within Certificate
in every particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Certificate Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-9
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Worldwide Securities Services/Global Debt - GSALT 2006-1
Xxxxxxx Xxxxx Asset Backed Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Re: GS Auto Loan Trust 2006-1
Ladies and Gentlemen:
In connection with our disposition of the Asset Backed Certificates (the
"CERTIFICATES") issued by the referenced trust (the "ISSUER") we certify that
(a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and are being
transferred by us in a transaction that is exempt from the registration
requirements of the Act and (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action which would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
[NAME OF TRANSFEROR]
By: ____________________________
Authorized Officer
B-1
EXHIBIT C
FORM OF INVESTMENT LETTER
[DATE]
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Worldwide Securities Services/Global Debt - GSALT 2006-1
Xxxxxxx Xxxxx Asset Backed Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Re: GS AUTO LOAN TRUST 2006-1
Ladies and Gentlemen:
In connection with our proposed purchase of a ____% percentage interest in
the Asset Backed Certificates (the "CERTIFICATES") of GS Auto Loan Trust 2006-1
(the "ISSUER"), we confirm that:
1. We understand that the Certificates have not been registered under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and may not be
sold except as permitted in the following sentence. We understand and agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Certificates are being offered only in a
transaction not involving any public offering within the meaning of the
Securities Act and (y) that such Certificates may be resold, pledged or
transferred only (i) to the Depositor, (ii) so long as such Certificate is
eligible for resale pursuant to Rule 144A under the Securities Act ("RULE
144A"), to a person whom we reasonably believe after due inquiry is a "qualified
institutional buyer" as defined in Rule 144A, acting for its own account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are "qualified institutional buyers") to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A or (iii)
in a sale, pledge or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which case the Owner
Trustee shall require that both the
C-1
prospective transferor and the prospective transferee certify to the Owner
Trustee or the Certificate Registrar and the Depositor in writing the facts
surrounding such transfer, which certification shall be in form and substance
satisfactory to the Owner Trustee and the Depositor. Except in the case of a
transfer described in clauses (i) or (iii) above, the Owner Trustee shall
require that a written opinion of counsel (which will not be at the expense of
the Depositor, any affiliate of the Depositor, the Owner Trustee or the
Certificate Registrar) satisfactory to the Owner Trustee or the Certificate
Registrar and the Depositor be delivered to the Owner Trustee or the Certificate
Registrar and the Depositor to the effect that such transfer will not violate
the Securities Act, in each case in accordance with any applicable securities
laws of any state of the United States. We will notify any purchaser of the
Certificates from us of the above resale restrictions, if then applicable. We
further understand that in connection with any transfer of the Certificates by
us that the Depositor and the Owner Trustee may request, and if so requested we
will furnish such certificates and other information as they may reasonably
require to confirm that any such transfer complies with the foregoing
restrictions.
2. We are a "qualified institutional buyer" as defined under Rule 144A
under the Securities Act and are acquiring the Certificates for our own account
(and not for the account of others) or as a fiduciary or agent for others (which
others also are "qualified institutional buyers"). We are familiar with Rule
144A under the Securities Act and are aware that the seller of the Certificates
and other parties intend to rely on the statements made herein and the exemption
from the registration requirements of the Securities Act provided by Rule 144A.
3. We are not, and we are not acting on behalf of, (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) whether or not 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 an employee benefit plan's or a plan's investment in the entity (each,
a "Benefit Plan"). We hereby acknowledge that no transfer of any Certificate
shall be permitted to be made to any person unless the Owner Trustee has
received a certificate from such transferee to the effect of the preceding
sentence.
4. (a) We are purchasing one or more Certificates, in an authorized
denomination, for our own account as the sole beneficial owner, (b) either (1)
we are not, for federal income tax purposes, a partnership, grantor trust, or S
Corporation (as defined in the Code) (any such entity, a "PASS-THROUGH ENTITY")
or (2) we are a Pass-Through Entity, but after giving effect to such purchase of
such Certificates less than 50% of the value of each beneficial ownership
interest in such Pass-Through Entity is attributable to the Certificates and/or
the Notes, and (c) such Certificates have not been transferred through an
"established securities market" within the meaning of Section 7704(b) of the
Code.
5. We understand that the Depositor, the Owner Trustee, the Issuer,
Xxxxxxx Xxxxx & Co. and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements, and we agree that if
any of the acknowledgments, representations and warranties deemed to have been
made by us by our purchase of the Certificates, for our own account or for one
or more accounts as to each of which we exercise sole investment discretion, are
no longer accurate, we shall promptly notify the Depositor, the Owner Trustee
and Xxxxxxx Sachs & Co.
C-2
6. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By: ____________________________
Name:
Title:
Date: _________________
X-0
XXXXXXX X-0
FINANCING STATEMENT AGAINST THE SELLER
D-1
EXHIBIT D-2
FINANCING STATEMENT AGAINST THE DEPOSITOR
D-2-1
EXHIBIT D-3
FINANCING STATEMENT AGAINST THE ISSUER
D-3-1
