EXHIBIT 4.2
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF MARCH 11, 1999
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1 Definitions 1
ARTICLE II
ORGANIZATION 1
Section 2.1 Name 1
Section 2.2 Office 1
Section 2.3 Purposes and Powers 1
Section 2.4 Appointment of Owner Trustee 2
Section 2.5 Initial Capital Contribution of Owner Trust Estate 2
Section 2.6 Declaration of Trust 2
Section 2.7 Liability of the Certificateholders 2
Section 2.8 Title to Trust Property 3
Section 2.9 Situs of Trust 3
Section 2.10 Representations and Warranties of the Seller 3
Section 2.11 Tax Treatment 4
ARTICLE III
THE CERTIFICATES 4
Section 3.1 Initial Certificate Ownership 4
Section 3.2 Form of the Certificates 4
Section 3.3 Execution, Authentication and Delivery 5
Section 3.4 Registration; Registration of Transfer and
Exchange of Certificates 5
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates 6
Section 3.6 Persons Deemed Certificateholders 7
Section 3.7 Access to List of Certificateholders'
Names and Addresses 7
Section 3.8 Maintenance of Corporate Trust Office 7
Section 3.9 Appointment of Paying Agent 7
Section 3.10 [Reserved] 8
Section 3.11 [Reserved] 8
Section 3.12 [Reserved] 8
Section 3.13 [Reserved] 8
Section 3.14 Seller as Certificateholder 8
ARTICLE IV
ACTIONS BY OWNER TRUSTEE 8
Section 4.1 Prior Notice to Certificateholders with Respect
to Certain Matters 8
Section 4.2 Action by Certificateholders with Respect
to Certain Matters 9
Section 4.3 Action by Certificateholders with Respect
to Bankruptcy 9
Section 4.4 Restrictions on Certificateholders' Power 9
Section 4.5 Majority Control 10
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 10
Section 5.1 Establishment of Certificate Distribution Account 10
Section 5.2 Application of Trust Fund 10
Section 5.3 Method of Payment 11
Section 5.4 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others 12
Section 5.5 Signature on Returns; Other Tax Matters 12
ARTICLE VI
THE OWNER TRUSTEE 12
Section 6.1 Duties of Owner Trustee 12
Section 6.2 Rights of Owner Trustee 13
Section 6.3 Acceptance of Trusts and Duties 13
Section 6.4 Action upon Instruction by Certificateholders 15
Section 6.5 Furnishing of Documents 15
Section 6.6 Representations and Warranties of Owner Trustee 16
Section 6.7 Reliance; Advice of Counsel 16
Section 6.8 Owner Trustee May Own Certificates and Notes 17
Section 6.9 Compensation and Indemnity 17
Section 6.10 Replacement of Owner Trustee 17
Section 6.11 Merger or Consolidation of Owner Trustee 18
Section 6.12 Appointment of Co-Trustee or Separate Trustee 19
Section 6.13 Eligibility Requirements for Owner Trustee 20
ARTICLE VII
TERMINATION OF TRUST AGREEMENT 20
Section 7.1 Termination of Trust Agreement 20
ARTICLE VIII
AMENDMENTS 21
Section 8.1 Amendments Without Consent of Certificateholders
or Noteholders 21
Section 8.2 Amendments With Consent of Certificateholders
and Noteholders 22
Section 8.3 Form of Amendments 22
ARTICLE IX
MISCELLANEOUS 23
Section 9.1 No Legal Title to Owner Trust Estate 23
Section 9.2 Limitations on Rights of Others 23
Section 9.3 Derivative Actions 23
Section 9.4 Notices 23
Section 9.5 Severability 23
Section 9.6 Counterparts 24
Section 9.7 Successors and Assigns 24
Section 9.8 No Petition 24
Section 9.9 No Recourse 24
Section 9.10 Headings 24
Section 9.11 Governing Law 24
Section 9.12 [Reserved] 25
Section 9.13 Indemnification by and Reimbursement
of the Servicer 25
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
TRUST AGREEMENT, dated as of March 11, 1999, between CAPITAL AUTO
RECEIVABLES, INC., a Delaware corporation, as Seller, and BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 SECTION DEFINITIONS . Certain capitalized terms used in this Agreement shall
have the respective meanings assigned to them in PART I of APPENDIX A to the
Trust Sale and Servicing Agreement of even date herewith, among the Seller, the
Servicer and the Trust (the "TRUST SALE AND SERVICING AGREEMENT"). All
references herein to "THE AGREEMENT" or "THIS AGREEMENT" are to this Trust
Agreement, and all references herein to Articles, Sections and subsections are
to Articles, Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in PART II of such APPENDIX shall
be applicable to this Agreement.
ARTICLE II
ORGANIZATION
1.1 SECTION NAME . The Trust created hereby shall be known as "Capital Auto
Receivables Asset Trust 1999-1" in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust.
1.1 SECTION OFFICE . The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificate Owners and
the Seller.
1.2
1.3 SECTION PURPOSES AND POWERS . The purpose of the Trust is,and the Trust
shall have the power and authority, to engage in the following activities:
1.4
(i) to acquire, manage and hold the Receivables;
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer or exchange the
Notes and the Certificates;
(i) to acquire certain property and assets from the Seller pursuant
to the Trust Sale and Servicing Agreement, to make payments to
the Noteholders and the Certificateholders, to make deposits into
and withdrawals from the Reserve Account and to pay the
organizational, start-up and transactional expenses of the Trust;
(i) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage
and distribute to the Certificate Owners pursuant to the terms of
this Agreement and the Trust Sale and Servicing Agreement any
portion of the Trust Estate released from the lien of, and
remitted to the Trust pursuant to, the Indenture;
(i) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(i) 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
(i) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of
distributions to the Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
1.1 SECTION APPOINTMENT OF OWNER TRUSTEE . The Seller hereby appoints the Owner
Trustee as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein.
1.2
1.3 SECTION INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE . The Seller
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 Seller, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Owner Trust Estate and shall be deposited in
the Certificate Distribution Account. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
1.4
1.5 SECTION DECLARATION OF TRUST . The Owner Trustee hereby
declares that it shall hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the Certificate
Owners, subject to the obligations of the Trust under the Basic Documents. It is
the intention of the parties hereto that the Trust constitute a business trust
under the Business Trust Statute, that this Agreement constitute the governing
instrument of such business trust and that the Certificates represent the
beneficial interests therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute and the
relationship between the parties hereto created by this Agreement shall not
constitute indebtedness for any purpose. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
1.6
1.7 SECTION LIABILITY OF THE CERTIFICATEHOLDERS. Certificateholders and holders
of beneficial interests therein shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the Delaware General Corporation Law.
1.8
1.9 SECTION TITLE TO TRUST PROPERTY . Legal title to all the Owner Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
1.10
1.11 SECTION SITUS OF TRUST . The Trust shall be located and administered in the
States of Delaware or New York. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust shall be the Corporate Trust Office in Delaware.
1.12
1.13 SECTION REPRESENTATIONS AND WARRANTIES OF THE SELLER . The Seller hereby
represents and warrants to the Owner Trustee that:
1.14
(a) The Seller has been duly organized and is 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 presently owned and such business is
presently conducted and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Receivables.
(a) The Seller is duly qualified to do business as a foreign corporation
in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(a) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and
authority to sell and assign the property to be sold and assigned to
and deposited with the Issuer as part of the Trust and the Seller has
duly authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller
by all necessary corporate action.
(a) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a
party or by which it is bound, or 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 violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
1.1 SECTION TAX TREATMENT . The Seller and the Owner Trustee, by entering into
this Agreement, and the Certificateholders, by acquiring any Certificates or
interest therein, (i) express their intention that the Certificates will qualify
as equity interests in either (A) a division of the Seller, or any other single
Person, disregarded as a separate entity for federal income tax purposes if all
Certificates are owned solely by the Seller or by such single Person, or (B) a
partnership for federal income tax purposes if the Certificates are owned by
more than one Person and (ii) unless otherwise required by the appropriate
taxing authorities, agree to treat the Certificates as equity interests in an
entity as described in CLAUSE (I) of this SECTION 2.11 for the purposes of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by, or based
upon gross or net income. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with such
characterization of the Trust for such tax purposes.
ARTICLE III
THE CERTIFICATES
1.1 SECTION INITIAL CERTIFICATE OWNERSHIP . Upon the formation of the Trust by
the contribution by the Seller pursuant to SECTION 2.5 and until the issuance of
the Certificates, the Seller shall be the sole Certificateholder.
1.1 SECTION FORM OF THE CERTIFICATES .
1.2
(a) The Certificates shall be substantially in the form set forth in EXHIBIT A
and shall be issued in minimum denominations of $20,000. The Certificates shall
represent the entire beneficial interest in the Trust. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible 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 Trust, shall be
duly issued, fully paid and non-assessable beneficial interests in the Trust,
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.
(a) The Definitive Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these
methods (with or without steel engraved borders) all as determined by
the officers executing such Certificates, as evidenced by their
execution of such Certificates.
(b)
(c) The terms of the Certificates set forth in EXHIBIT A shall form part
of this Agreement.
(d)
1.2 SECTION EXECUTION, AUTHENTICATION AND DELIVERY. Concurrently with the sale
of the Receivables to the Trust pursuant to the Trust Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificates in an aggregate
principal amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall 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 Bankers Trust Company, 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.
1.1 SECTION REGISTRATION;REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
1.2
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to SECTION 3.8, 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
provided herein; PROVIDED, HOWEVER, that no Certificate may be
subdivided upon transfer or exchange such that the denomination of any
resulting Certificate is less than $20,000. Bankers Trust Company
shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the
duties of Certificate Registrar.
(a) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner whatsoever
their rights to and interests in the Certificates, provided that the
following conditions are satisfied: (i) the transferee provides
written verification from the applicable Rating Agencies that such
sale, transfer, conveyance or assignment will not result in a
reduction or withdrawal of the rating of any class of Notes then
outstanding, (ii) the transferee provides to the Owner Trustee and the
Indenture Trustee an opinion of independent counsel that such action
will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for Federal income tax
purposes, (iii) such transferee or assignee agrees in writing to take
positions for tax purposes consistent with the tax positions agreed to
be taken by the initial Certificateholders herein, (iv) the transferee
provides the Owner Trustee (and the Certificate Registrar if not the
Owner Trustee) with an opinion of counsel satisfactory to the Owner
Trustee stating that such transfer (x) is exempt from registration
under applicable state and federal securities laws, (y) will not cause
the Trust to be an "investment company" or under the "control" of an
"investment company" within the meaning of the Investment Company Act
and (z) otherwise complies with the restrictions on Transfer contained
in this Agreement, and (v) the transferee certifies to the Owner
Trustee that it is not a BENEFIT PLAN. The Owner Trustee shall have no
obligation to determine whether or not a transferee of a Trust
Certificate is or is not a Benefit Plan.
(b)
(c) Subject to SECTION 3.4(B), upon surrender for registration of transfer
of any Certificate at the office or agency maintained pursuant to
SECTION 3.8, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause Bankers Trust Company 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.
(d)
(e) At the option of a Holder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate principal
amount upon surrender of the Certificates to be exchanged at the
Corporate Trust Office maintained pursuant to SECTION 3.8. Whenever
any Certificates are so surrendered for exchange, the Owner Trustee
shall execute on behalf of the Trust, authenticate and deliver (or
shall cause Bankers Trust Company as its authenticating agent to
authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent. Such
Certificates shall be delivered to the Holder making the exchange.
(f)
(g) 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 Holder or his attorney duly authorized
in writing and such other documents and instruments as may be required
by SECTION 3.4(B). Each Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed or
otherwise disposed of by the Owner Trustee or Certificate Registrar in
accordance with its customary practice.
(h)
(i) 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 and any other expenses of the Owner Trustee in connection with
any transfer or exchange of Certificates.
1.1 SECTION MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES .
1.2
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Certificate Registrar, the Owner
Trustee and the Trust such security or indemnity as may be required by
them to hold each of them harmless, then, in the absence of notice to
the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause Bankers Trust Company as its
authenticating agent to authenticate and deliver), in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a replacement Certificate in authorized denominations of a like
aggregate principal amount; PROVIDED, HOWEVER, that if any such
destroyed, lost or stolen Certificate, but not a mutilated
Certificate, shall have become or within seven days shall be due and
payable, then instead of issuing a replacement Certificate the Owner
Trustee may pay such destroyed, lost or stolen Certificate when so due
or payable.
(a) If, after the delivery of a replacement Certificate in respect of a
destroyed, lost or stolen Certificate pursuant to SUBSECTION 3.5(A), a
protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such
replacement Certificate (and any distributions or payments made with
respect thereto) from the Person to whom it was delivered or any
Person taking such replacement Certificate from such Person to whom
such replacement Certificate was delivered or any assignee of such
Person, except a protected purchaser, and shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(b)
(c) In connection with the issuance of any replacement Certificate under
this SECTION 3.5, the Owner Trustee may require the payment by the
Holder of such Certificate of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the
Owner Trustee and the Certificate Registrar) connected therewith.
(d)
(e) Any duplicate Certificate issued pursuant to this SECTION 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate
shall constitute an original additional beneficial interest in the
Trust, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time or be enforced by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Certificates duly issued
hereunder.
(f)
(g) The provisions of this SECTION 3.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
(h)
1.2 SECTION PERSONS DEEMED CERTIFICATEHOLDERS . Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
in the Certificate Register as the Certificateholder of such Certificate for the
purpose of receiving distributions pursuant to Article V and for all other
purposes whatsoever, and neither the Owner Trustee nor the Certificate Registrar
shall be affected by any notice to the contrary.
1.3
1.4 SECTION ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES . The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list of the names and addresses of
the Certificateholders as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Servicer, the Seller 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.
1.5
1.6 SECTION MAINTENANCE OF CORPORATE TRUST OFFICE . The Owner Trustee shall
maintain 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 the offices of Bankers Trust Company, Four Albany
Street, New York, New York 10006, as its principal office for such purposes. The
Owner Trustee shall give prompt written notice to the Seller and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
1.7
1.8 SECTION APPOINTMENT OF PAYING AGENT . Except as otherwise provided in
SECTION 5.2, the Paying Agent shall make distributions to Certificateholders
from the Certificate Distribution Account pursuant to SECTION 5.2 and shall
report the amounts of such distributions to the Owner Trustee and the Servicer;
PROVIDED that no such reports shall be required so long as the Seller is the
sole Certificateholder. 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 shall initially
be Bankers Trust Company, and any co-paying agent chosen by Bankers Trust
Company, and acceptable to the Owner Trustee. Bankers Trust Company shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. If Bankers Trust Company shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent 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. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
SECTIONS 6.3, 6.6, 6.7 AND 6.9 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent, certificate registrar or
authenticating agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
1.9
1.10 SECTION [RESERVED].
1.11
1.12 SECTION [RESERVED].
1.13
1.14 SECTION [RESERVED] .
1.15
1.16 SECTION [RESERVED]
1.17
1.18 SECTION SELLER AS CERTIFICATEHOLDER . The Seller in its individual or any
other capacity may become the owner or pledgee of Certificates and may otherwise
deal with the Owner Trustee or its Affiliates as if it were not the Seller.
1.19
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
1.1 SECTION PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS .
The Owner Trustee shall not take action with respect to the following matters,
unless (i) the Owner Trustee shall have notified the Certificateholders in
writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on a Receivable or an action by the Indenture
Trustee pursuant to the Indenture) and the compromise of any action,
claim or lawsuit brought by or against the Trust (other than an action
to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture);
(a) the election by the Trust to file an amendment to the Certificate of
Trust, a conformed copy of which is attached hereto as EXHIBIT B;
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and
such amendment materially adversely affects the interests of the
Certificateholders;
(a) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests
of the Certificateholders; or
(a) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
1.1 SECTION 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 remove the Administrator under the Administration
Agreement pursuant to SECTION 10 thereof, appoint a successor Administrator
pursuant to SECTION 10 of the Administration Agreement, remove the Servicer
under the Trust Sale and Servicing Agreement pursuant to SECTION 7.02 thereof or
except as expressly provided in the Basic Documents, sell the Receivables or any
interest therein 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.
1.2
1.3 SECTION ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY . The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders of Certificates; PROVIDED, HOWEVER, that under no circumstances shall
the Owner Trustee commence or join in commencing any such proceeding prior to
the date that is one year and one day after the termination of the Trust.
1.4
1.5 SECTION RESTRICTIONS ON CERTIFICATEHOLDERS' POWER . The Certificateholders
shall not direct the Owner Trustee to take or refrain from taking any action if
such action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents or would be
contrary to SECTION 2.3, nor shall the Owner Trustee be obligated to follow any
such direction, if given. The Certificateholders shall not and shall not direct
the Owner Trustee to take action that would violate the provisions of SECTION
6.1 and, if given, the Owner Trustee shall not be obligated to follow any such
direction.
1.6
1.7 SECTION MAJORITY CONTROL . Except as expressly provided herein, any action
that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests as of the close of
the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document 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
Voting Interests at the time of the delivery of such notice.
1.8
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
1.1 SECTION ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT .
1.2
(a) Except as otherwise provided in SECTION 5.2, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain in the
name of the Trust an Eligible Deposit Account known as the Capital
Auto Receivables Asset Trust 1999-1 Certificate Distribution Account
(the "CERTIFICATE DISTRIBUTION ACCOUNT"), bearing an additional
designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
(a) The Trust shall possess all right, title and interest in and to all
funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. Except as otherwise provided
herein or in the Trust Sale and Servicing Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an
Eligible Deposit Account, the Owner Trustee (or the Servicer on behalf
of the Owner Trustee, if the Certificate Distribution Account is not
then held by the Owner Trustee or an Affiliate thereof) shall within
10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a new
Certificate Distribution Account as an Eligible Deposit Account and
shall transfer any cash and/or any investments to such new Certificate
Distribution Account.
1.1 SECTION APPLICATION OF TRUST FUNDS .
1.2
(a) On each Distribution Date, the Owner Trustee shall distribute to the
Certificateholders, on a pro rata basis, amounts equal to the amounts
deposited in the Certificate Distribution Account pursuant to SECTIONS
4.06 AND 4.07 of the Trust Sale and Servicing Agreement on or prior to
such Distribution Date. Notwithstanding the foregoing or anything else
to the contrary in this Agreement or the other Basic Documents, so
long as Certificates representing in the aggregate a 100% beneficial
interest in the Trust are held by the Seller, (i) no Certificate
Distribution Account shall be required to be established or maintained
and (ii) all distributions and payments on the Certificates (including
the final distribution as contemplated by SECTION 7.1(C) hereof)
required hereunder or under the Trust Sale and Servicing Agreement
shall be made directly to the Seller by the Indenture Trustee (whether
or not the Trust Sale and Servicing Agreement otherwise contemplates
deposit into the Certificate Distribution Account) and the Owner
Trustee shall have no duty or liability to see to such distribution.
(a) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the
Servicer pursuant to SECTION 4.09(A) of the Trust Sale and Servicing
Agreement on such Distribution Date setting forth, among other things,
the amount of the distribution allocable to Certificate Balance and to
interest, the Certificate Balance after giving effect to such
distribution, the balance of the Reserve Account (and amounts, if any,
distributed from the Reserve Account) and the Total Servicing Fee with
respect to such Distribution Date or Monthly Period, as applicable;
PROVIDED that no such statement shall be required to be sent by the
Owner Trustee so long as the Seller is the sole Certificateholder.
(b)
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in
accordance with this SECTION 5.2; PROVIDED that the Owner Trustee
shall not have an obligation to withhold any such amount so long as
the Seller is the sole Certificateholder. The Owner Trustee is 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 Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be
treated as cash distributed to such Certificateholder at the time it
is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this SUBSECTION 5.2(C). If a
Certificateholder wishes to apply for a refund of any such withholding
tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(d)
(e) If the Indenture Trustee holds escheated funds for payment to the
Trust pursuant to SECTION 3.3(E) of the Indenture, the Owner Trustee
shall, upon notice from the Indenture Trustee that such funds exist,
submit on behalf of the Trust an Issuer Order to the Indenture Trustee
pursuant to SECTION 3.3(E) of the Indenture instructing the Indenture
Trustee to pay such funds to or at the order of the Seller.
(f)
1.2 SECTION METHOD OF PAYMENT . Subject to SUBSECTION 7.1(C), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the immediately preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Record Date and
such Holder's Certificates in the aggregate evidence a denomination of not less
than $1,000,000, or, if not, by check mailed to such Certificateholder at the
address of such holder appearing in the Certificate Register.
1.3
1.4 SECTION ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE INTERNAL
REVENUE SERVICE AND OTHERS . The Owner Trustee shall maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, deliver to each Certificateholder, as may be required by
the Code and applicable Treasury Regulations or otherwise, such information as
may be required to enable each Certificateholder to prepare its federal income
tax return, file such tax returns relating to the Trust and make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as an entity described in clause (i) of SECTION 2.11
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with SUBSECTION 5.2(C) with respect to income
or distributions to Certificateholders.
1.5
1.6 SECTION SIGNATURE ON RETURNS; OTHER TAX MATTERS . The Owner Trustee shall
sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller. To the extent one may be
required, the Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
1.7
ARTICLE VI
THE OWNER TRUSTEE
1.1 SECTION DUTIES OF OWNER TRUSTEE .
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the other
Basic Documents, including the administration of the Trust in the
interest of the Certificateholders, subject to the Basic Documents and
in accordance with the provisions of this Agreement. No implied
covenants or obligations shall be read into this Agreement.
(b)
(c) Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty
of the Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration
Agreement.
(d)
(e) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in
determining the truth of the statements and the correctness of the
opinions contained therein; PROVIDED, HOWEVER, that the Owner Trustee
shall have examined such certificates or opinions so as to determine
compliance of the same with the requirements of this Agreement.
(f)
(g) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(h)
(ii) this SUBSECTION 6.1(D) shall not limit the effect of SUBSECTION
6.1(A) OR (B);
(i) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved
that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(i) the Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 4.1, 4.2 OR 6.4.
(e) Subject to SECTIONS 5.1 AND 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent
required by law or the Trust 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.
(f)
(g) The Owner Trustee shall not take any action that (i) is inconsistent
with the purposes of the Trust set forth in SECTION 2.3 or (ii) would,
to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust'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 6.1.
(h)
1.2 SECTION RIGHTS OF OWNER TRUSTEE . The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Administrator recommends and directs in writing with respect to the Basic
Documents.
1.3
1.4 SECTION ACCEPTANCE OF TRUSTS AND DUTIES . Except as otherwise provided in
this ARTICLE VI, in accepting the trusts hereby created, Bankers Trust
(Delaware) acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof. 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 Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in SECTION 6.6 and expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
1.5
(a) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of
any security interest created by any Receivable in any Financed
Vehicle or the maintenance of any such perfection and priority, or for
or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to
Certificateholders under this Agreement or to Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of
any insurance thereon; the existence and contents of any Receivable on
any computer or other record thereof; the validity of the assignment
of any Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Seller 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 Administrator, the Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee.
(a) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of
the Administrator or any Certificateholder;
(a) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of 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;
(a) 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 or the
Certificate Balance of and interest on the Certificates;
(a) the Owner Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the
Seller or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, the Notes, the
Certificates (other than the certificate of authentication on the
Certificates) or of any Receivables or any related documents, and the
Owner Trustee 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 and in the Basic Documents;
(a) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Indenture Trustee, the Seller or the Servicer
under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer
under the Pooling and Servicing Agreement or the Trust Sale and
Servicing Agreement; and
(a) 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 or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
1.1 SECTION ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS.
1.2
(e) Subject to SECTION 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of
the Certificateholders pursuant to SECTION 4.5.
(e) Notwithstanding the foregoing, 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.
(f)
(g) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement
or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the
Basic Documents, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the
Certificateholders 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 such instruction 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 instructions within
ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action which is consistent, in its view, with
this Agreement or the Basic Documents, and as it shall deem to be in
the best interests of the Certificateholders, and the Owner Trustee
shall have no liability to any Person for any such action or inaction.
(h)
1.2 SECTION 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.
1.3
1.4 SECTION REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE . The Owner Trustee
hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
1.5
(a) It is a banking corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation. It has
satisfied the eligibility requirements set forth in SECTION 6.13.
(a) It has full power, authority and legal right to execute, deliver and
perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Agreement.
(a) The execution, delivery and performance by it of this Agreement (i)
shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ,
judgment or decree of any court, arbitrator or governmental authority
applicable to the Owner Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or by-laws of the Owner
Trustee or (iii) shall not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in
the creation or imposition of any lien on any properties included in
the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or
ability to perform its duties as Owner Trustee under this Agreement or
on the transactions contemplated in this Agreement.
(a) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the
Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
1.1 SECTION RELIANCE; ADVICE OF COUNSEL .
1.2
(e) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the
proper party or parties and need not investigate any fact or matter in
any such document. 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 the determination of
which is not specifically prescribed herein, the Owner Trustee may for
all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of
the relevant party, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(e) 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: may act directly or through its
agents, attorneys, custodians or nominees (including the granting of a
power of attorney to officers of Bankers Trust Company to execute and
deliver any Basic Documents, Certificate, Note or other documents
related thereto on behalf of the Owner Trustee) 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, attorneys,
custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the Owner Trustee with reasonable
care; and may consult with counsel, accountants and other skilled
professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any Basic Document.
(f)
1.2 SECTION 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 Seller, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Owner Trustee.
1.3
1.4 SECTION COMPENSATION AND INDEMNITY . 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 Servicer and the Owner Trustee, and the
Owner Trustee, any paying agent, registrar, authenticating agent or co-trustee
shall be entitled to be reimbursed by the Servicer for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, custodians, nominees, representatives, experts and
counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee, any paying agent, registrar, authenticating agent or
co-trustee and its successors, assigns, agents and servants in accordance with
the provisions of SECTION 6.01 of the Trust Sale and Servicing Agreement. The
indemnities contained in this SECTION 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. Any
amounts paid to the Owner Trustee pursuant to this ARTICLE VI shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment.
1.1 SECTION REPLACEMENT OF OWNER TRUSTEE .
1.2
(e) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by giving notice thereof to
the Administrator PROVIDED that no such resignation shall become
effective, and the Owner Trustee shall not resign, prior to the time
set forth in SECTION 6.10(C). If no successor Owner Trustee shall have
been appointed pursuant to Section 6.10(b) and have accepted such
appointment within 30 days after the giving of such notice, the Owner
Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of SECTION 6.13 and shall fail to resign after
written request therefor by the Administrator;
(i) the Owner Trustee shall be adjudged bankrupt or insolvent;
(i) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation; or
(i) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any
reason the Administrator 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.
(c)
(d) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this
SECTION 6.10 shall not become effective and no such resignation shall
be deemed to have occurred until a written acceptance of appointment
is delivered by the successor Owner Trustee to the outgoing Owner
Trustee and the Administrator and all fees and expenses due to the
outgoing Owner Trustee are paid. Any successor Owner Trustee appointed
pursuant to this SECTION 6.10 shall be eligible to act in such
capacity in accordance with SECTION 6.13 and, following compliance
with the preceding sentence, 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 Administrator shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
(e)
(f) 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. The
Administrator 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.
(g)
(h) Upon acceptance of appointment by a successor Owner Trustee pursuant
to this SECTION 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the
Indenture Trustee, the Noteholders and the Rating Agencies.
(i)
1.2 SECTION MERGER OR CONSOLIDATION OF OWNER TRUSTEE . Any Person into which
the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to SECTION 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; PROVIDED, HOWEVER, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
1.1 SECTION APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE .
1.2
(b) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Owner Trust Estate or any Financed Vehicle
may at the time be located, the Administrator and the Owner Trustee
acting jointly shall, at the expense of the Servicer, have the power
and shall, at the expense of the Servicer, 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 trustees, of all or any part of the Owner Trust
Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions
of this SECTION 6.12, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider
necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor
trustee pursuant to SECTION 6.13 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to
SECTION 6.10.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(c)
(ii) 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 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;
(i) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(i) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer
to this Agreement and the conditions of this Article. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall
be filed with the Owner Trustee and a copy thereof given to the
Administrator.
(d)
(e) 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 trustee.
(f)
1.2 SECTION ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE . The Owner Trustee
shall at all times satisfy the requirement of SECTION 26(A)(1) of the Investment
Company Act. The Owner Trustee shall at all times: (a) be a corporation
satisfying the provisions of SECTION 3807(A) of the Business Trust Statute; (b)
be authorized to exercise corporate trust powers; (c) have a combined capital
and surplus of at least $50,000,000 and be subject to supervision or examination
by federal or state authorities; and (d) have (or have a parent which has) a
long-term unsecured debt rating of at least BBB- by Standard Poor's Rating
Services and at least Baa3 by Moody's Investors Service, Inc. 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 6.13, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this SECTION 6.13, the Owner Trustee shall resign immediately in the manner and
with the effect specified in SECTION 6.10.
1.3
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
1.1 SECTION TERMINATION OF TRUST AGREEMENT .
(c) This Agreement (other than SECTION 6.9) and the Trust shall terminate
in accordance with SECTION 3808 of the Business Trust Statute and be
of no further force or effect on the final distribution by the Owner
Trustee of all monies or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture, the Trust Sale
and Servicing Agreement (including the exercise by the Servicer of its
option to purchase the Receivables pursuant to SECTION 8.01(A) of the
Trust Sale and Servicing Agreement) and ARTICLE V. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder
shall not (x) operate to terminate this Agreement or the Trust, (y)
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 Trust or the
Owner Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(d)
(e) Neither the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(f)
(g) Subject to SECTION 5.2(A), notice of any termination of the Trust,
specifying the Distribution Date upon which the 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 Business
Days of receipt of notice of such termination from the Servicer given
pursuant to SUBSECTION 8.01(C) of the Trust Sale and Servicing
Agreement, stating: (i) the Distribution 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 Record Date otherwise applicable to such
Distribution 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 Distribution Date
pursuant to SECTION 5.2.
(h)
(i) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date
specified in the written notice referred to in SUBSECTION 7.1(C), 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. Subject to
applicable laws with respect to escheat of funds, any funds remaining
in the Trust after exhaustion of such remedies in the preceding
sentence shall be deemed property of the Seller and distributed by the
Owner Trustee to the Seller, and the Owner Trustee shall have no
further liability to the Certificateholders with respect thereto.
(j)
(k) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing
a certificate of cancellation with the Secretary of State in
accordance with the provisions of SECTION 3810 of the Business Trust
Statute.
(l)
ARTICLE VIII
AMENDMENTS
1.1 SECTION AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR NOTEHOLDERS .
This Agreement may be amended by the Seller and the Owner Trustee without the
consent of any of the Noteholders or the Certificateholders (but with prior
notice to each of the Rating Agencies), to (i) cure any ambiguity, (ii) correct
or supplement any provision in this Agreement that may be defective or
inconsistent with any other provision in this Agreement or any other Basic
Document, (iii) add or supplement any credit enhancement for the benefit of the
Noteholders or the Certificateholders (provided that if any such addition shall
affect any class of Noteholders or Certificateholders differently than any other
class of Noteholders or Certificateholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any class of the Noteholders or the Certificateholders), (iv) add
to the covenants, restrictions or obligations of the Seller or the Owner
Trustee, (v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the Owner Trust Estate and add to or change
any provisions as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee pursuant to ARTICLE VI, and (vi) add,
change or eliminate any other provision of this Agreement in any manner that
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Noteholders or the Certificateholders.
1.1 SECTION AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND NOTEHOLDERS .
This Agreement may be amended from time to time by the Seller and the Owner
Trustee with the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and the consent of Certificateholders whose Certificates
evidence not less than a majority of the Voting Interests as of the close of the
preceding Distribution Date (which consent, whether given pursuant to this
SECTION 8.2 or pursuant to any other provision of this Agreement, shall be
conclusive and binding on such Person and on all future holders of such Notes or
Certificates and of any Notes or Certificates issued upon the transfer thereof
or in exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Notes or Certificates) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Note or Certificate, the Pass Through Rate or the
Specified Reserve Account Balance or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Notes and all of the Voting Interests with respect to Certificates then
outstanding. The Owner Trustee shall furnish notice to each of the Rating
Agencies prior to obtaining consent to any proposed amendment under this SECTION
8.2.
1.1 SECTION FORM OF AMENDMENTS .
1.2
(c) Promptly after the execution of any amendment, supplement or consent
pursuant to SECTION 8.1 OR 8.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to
each Certificateholder and the Indenture Trustee.
(c) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to SECTION 8.2 to
approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents
of Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(d)
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(f)
(g) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive
and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
(h)
ARTICLE IX
MISCELLANEOUS
1.1 SECTION NO LEGAL TITLE TO OWNER TRUST ESTATE . The Certificateholders shall
not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with ARTICLES V
AND VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
1.1 SECTION LIMITATIONS ON RIGHTS OF OTHERS . Except for SECTION 9.13, the
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Seller, the Certificateholders, the Administrator 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
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
1.1 SECTION DERIVATIVE ACTIONS . Any provision contained herein to the
contrary notwithstanding, the right of any Certificate Owner to bring a
derivative action in the right of the Trust is hereby made expressly subject to
the following limitations and requirements:
(c) such Certificate Owner must meet all requirements set forth in the
Business Trust Statute; and
(d)
(e) no Certificate Owner may bring a derivative action in the right of the
Trust without the prior written consent of Certificate Owners owning,
in the aggregate, a beneficial interest in Certificates representing
50% of the then outstanding Certificate Balance.
(f)
1.2 SECTION NOTICES. All demands, notices and communications upon or to the
Seller, the Servicer, the Administrator, the Indenture Trustee, the Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in APPENDIX B to the Trust Sale and Servicing Agreement.
1.3
1.4 SECTION SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the holders
thereof
1.5
1.6 SECTION 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 one
and the same instrument.
1.7
1.8 SECTION SUCCESSORS AND ASSIGNS. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the Owner
Trustee and each Certificateholder and their respective 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.
1.9
1.10 SECTION NO PETITION. The Owner Trustee by entering this Trust Agreement
and each Certificateholder, by accepting a Certificate (or interest therein)
issued hereunder, hereby covenant and agree that they shall not, prior to the
day that is one year and one day after the termination of the Trust, acquiesce,
petition or otherwise invoke or cause the Seller or the Trust to invoke in any
court or government authority for the purpose of commencing or sustaining a case
against the Seller or the Trust under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or the
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller or the Trust.
1.11
1.12 SECTION NO RECOURSE. Each Certificateholder by accepting a Certificate
(or any interest therein) acknowledges that such Person's Certificate (or
interest therein) represents beneficial interests in the Trust only and does not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, 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. Except as expressly provided
in the Basic Documents, none of the Seller, the Servicer or the Owner Trustee in
their respective individual capacities, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, or shall recourse be had to any of them for the
distribution of any amount with respect to the Certificates or the Trust's
performance of, or omission to perform, any obligations or indemnifications
contained in the Certificates, this Agreement or the Basic Documents, it being
expressly understood that such Certificateholder obligations have been made
solely by the Trust. Each Certificateholder by the acceptance of a Certificate
(or beneficial interest therein) agrees except as expressly provided in the
Basic Documents, in the event of nonpayment of any amounts with respect to the
Certificates, it shall have no claim against any of the foregoing Persons for
any deficiency, loss or claim therefrom.
1.13
1.14 SECTION 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.
1.15
1.16 SECTION GOVERNING LAW . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
1.17
1.18 SECTION [RESERVED]
1.19
1.20 SECTION INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with SECTION 6.03(B) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with SECTION 3.04 of the Trust Sale
and Servicing Agreement. The Owner Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Owner Trustee harmless as set forth in SECTION
6.01(A)(IV) of the Trust Sale and Servicing Agreement.
1.21
1.22
* * * * *
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.
BANKERS TRUST (DELAWARE),
as Owner Trustee
By: __________________________
Name: Lillian Peros
Title: Attorney-in-Fact
CAPITAL AUTO RECEIVABLES, INC.
By: __________________________
Name: D. C. Walker
Title: Vice President
EXHIBIT A
NUMBER R- $_____________
CUSIP NO.____
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
MARCH 11, 1999, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.
THIS CERTIFICATE IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE TRUST
AGREEMENT REFERENCED BELOW.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
6.090 % ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail instalment sale contracts secured by
new and used automobiles and light trucks and sold to the Trust by Capital Auto
Receivables, Inc.
(This Certificate does not represent an interest in or obligation of Capital
Auto Receivables, Inc., General Motors Acceptance Corporation or General Motors
Corporation or any of their respective affiliates, except to the extent
described in the Basic Documents.)
THIS CERTIFIES THAT Capital Auto Receivables, Inc. is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in Capital Auto
Receivables Asset Trust 1999-1 (the "TRUST") formed by Capital Auto Receivables,
Inc., a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of March 11,
1999 (as amended and supplemented from time to time, the "TRUST AGREEMENT"),
between the Seller and Bankers Trust (Delaware), 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.
This Certificate is one of the duly authorized Certificates designated as
"6.090% Asset Backed Certificates" (the "CERTIFICATES"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, the terms of which are incorporated herein by reference and made a
part hereof, to which Trust Agreement the holder of this Certificate by virtue
of the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day,
commencing on April 15, 1999 (each, a "DISTRIBUTION DATE"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such Certificateholder's fractional undivided interest in the amount of
interest on and distributions in respect of Certificate Balance to be
distributed to Certificateholders on such Distribution Date; PROVIDED, HOWEVER,
Certificateholders shall not receive payments in respect of the Certificate
Balance until all the Notes have been paid (or provided for) in full. The
"RECORD DATE," with respect to any Distribution Date, means the last day of the
preceding Monthly Period.
The distributions in respect of Certificate Balance and interest on this
Certificate are payable in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Trust with respect to this Certificate shall be
applied first to interest due and payable on this Certificate as provided above
and then to the unpaid distributions in respect of Certificate Balance of this
Certificate.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Trust Sale and
Servicing Agreement.
It is the intent of the Seller, the Owner Trustee and the
Certificateholders that, for purposes of federal income, state and local income
and franchise taxes, Michigan single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, the Trust shall be treated
as either (A) division of the Seller, or any other single Person, and
disregarded as a separate entity if all Certificates are owned solely by the
Seller or by such single Person, or (B) a partnership if the Certificates are
owned by more than one Person. Except as otherwise required by appropriate
taxing authorities, the Seller and the other Certificateholders by acceptance of
a Certificate agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as interests in such a
disregarded entity or partnership as described in the previous sentence.
Each Certificateholder by its acceptance of a Certificate (or an interest
therein) covenants and agrees that such Certificateholder shall not, prior to
the date which is one year and one day after the termination of the Trust,
acquiesce, petition or otherwise invoke or cause the Seller or the Trustee to
invoke the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Seller or the Trustee under any
federal or state bankruptcy, insolvency, reorganization or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Trustee or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Trustee.
Except as otherwise provided in the Trust Agreement, distributions on this
Certificate shall be made as provided in the Trust Agreement by the Owner
Trustee by wire transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
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 shall 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 maintained for such 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 by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Trust Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
Owner Trustee
By: _________________________
Dated: March 11, 1999 Name: Lillian Peros
Title: Attorney-in-Fact
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
BANKERS TRUST (DELAWARE), BANKERS TRUST (DELAWARE),
not in its individual not in its individual
capacity but solely OR capacity but solely
as Owner Trustee as Owner Trustee
by ___________________________,
as Authenticating Agent
By:_________________________ By: ___________________________
Name: Lillian Peros Name:
Title: Attorney-in-Fact Title:
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, General Motors Corporation, the Indenture Trustee, the
Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be 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 Trust Agreement and the Trust Sale
and Servicing Agreement. A copy of each of the Trust Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the Holders of the
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
as of the close of the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date. 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 circumstances, without
the consent of the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in 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 Trust will be issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is Bankers Trust Company, New York, New York.
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 in accordance with Article VII of Trust
Agreement.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ 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 as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
THIS Certificate of Trust of Capital Auto Receivables Asset Trust 1999-1
(the "TRUST") is being duly executed and filed by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 DEL. C.
ss.3801 eT Seq.) (thE "Act")
1. NAME. The name of the business trust formed hereby is Capital Auto
Receivables Asset Trust 1999-1.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are Bankers Trust (Delaware), E.A. Delle Donne
Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington, Delaware
19805-1266.
3. This Certificate of Trust shall be effective on March 11, 1999.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust
in accordance with Section 3811(a)(1) of the Act.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner Trustee
under a Trust Agreement dated as of March 11, 1999
By: _______________________________
Name:
Title: