EXHIBIT 4.2
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TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
BANKERS TRUST (DELAWARE)
OWNER TRUSTEE
DATED AS OF JANUARY 24, 2002
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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......................................................2
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.....................................................3
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS......................................3
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..........................................................5
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP............................................5
SECTION 3.2 FORM OF THE CERTIFICATES.................................................5
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY...................................5
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES......6
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................8
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE....................................8
SECTION 3.9 APPOINTMENT OF PAYING AGENT..............................................8
SECTION 3.10 INITIAL CERTIFICATE ISSUANCE.............................................9
SECTION 3.11 BOOK-ENTRY CERTIFICATES..................................................9
SECTION 3.12 NOTICES TO CLEARING AGENCY..............................................10
SECTION 3.13 DEFINITIVE CERTIFICATES.................................................10
SECTION 3.14 SELLER AS CERTIFICATEHOLDER.............................................10
ARTICLE IV ACTIONS BY OWNER TRUSTEE..................................................10
SECTION 4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS......10
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS............11
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.................11
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER...............................12
SECTION 4.5 MAJORITY CONTROL........................................................12
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................................12
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT.......................12
SECTION 5.2 APPLICATION OF TRUST FUNDS..............................................13
SECTION 5.3 METHOD OF PAYMENT.......................................................14
SECTION 5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE INTERNAL
REVENUE SERVICE AND OTHERS.............................................14
SECTION 5.5 SIGNATURE ON RETURNS; OTHER TAX MATTERS.................................14
ARTICLE VI THE OWNER TRUSTEE.........................................................15
SECTION 6.1 DUTIES OF OWNER TRUSTEE.................................................15
SECTION 6.2 RIGHTS OF OWNER TRUSTEE.................................................16
SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES.........................................16
SECTION 6.4 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS...........................18
SECTION 6.5 FURNISHING OF DOCUMENTS.................................................18
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE.........................18
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.............................................19
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SECTION 6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES............................20
SECTION 6.9 COMPENSATION AND INDEMNITY..............................................20
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE............................................20
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE................................21
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE...........................21
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE..............................23
ARTICLE VII TERMINATION OF TRUST AGREEMENT...........................................23
SECTION 7.1 TERMINATION OF TRUST AGREEMENT..........................................23
ARTICLE VIII AMENDMENTS..............................................................24
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR NOTEHOLDERS.........24
SECTION 8.2 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND NOTEHOLDERS...........25
SECTION 8.3 FORM OF AMENDMENTS......................................................25
ARTICLE IX MISCELLANEOUS.............................................................26
SECTION 9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE....................................26
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS.........................................26
SECTION 9.3 DERIVATIVE ACTIONS......................................................26
SECTION 9.4 NOTICES.................................................................27
SECTION 9.5 SEVERABILITY............................................................27
SECTION 9.6 COUNTERPARTS............................................................27
SECTION 9.7 SUCCESSORS AND ASSIGNS..................................................27
SECTION 9.8 NO PETITION.............................................................27
SECTION 9.9 NO RECOURSE.............................................................28
SECTION 9.10 HEADINGS................................................................28
SECTION 9.11 GOVERNING LAW...........................................................28
SECTION 9.12 [RESERVED]..............................................................28
SECTION 9.13 INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER....................29
SECTION 9.14 EFFECT OF AMENDMENT AND RESTATEMENT.....................................29
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TRUST AGREEMENT, dated as of January 24, 2002, between CAPITAL AUTO
RECEIVABLES, INC., a Delaware corporation, as Seller, and BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Owner Trustee.
WHEREAS, the Seller and Owner Trustee entered into a certain trust
agreement dated January 16, 2002 (the "Original Trust Agreement"), which
contemplated this Trust Agreement.
WHEREAS, the Seller and the Owner Trustee desire hereby to amend and
restate the Original Trust Agreement in its entirety.
NOW THEREFORE, the Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 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
Section 2.1 Name. The Trust created hereby shall be known as "Capital Auto
Receivables Asset Trust 2002-1" 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. The Owner
Trustee is hereby authorized to file the Certificate of Trust on behalf of the
Trust pursuant to Section 3810(a) of the Business Trust Statute.
Section 2.2 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 Certificateholders and
the Seller.
Section 2.3 Purposes and Powers. The purpose of the Trust is, and the Trust
shall have the power and authority, to engage in the following activities:
(a) to acquire, manage and hold the Receivables;
(b) 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;
(c) to acquire certain property and assets from the Seller pursuant to the
Trust Sale and Servicing Agreement, to make payments to the Noteholders
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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;
(d) 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 Certificateholders 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;
(e) to enter into and perform its obligations and exercise its rights under
the Basic Documents to which it is to be a party;
(f) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, including entering into interest rate
swaps and caps and other derivative instruments; and
(g) 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.
Section 2.4 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.
Section 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
hereby sold, assigned, transferred, conveyed and set over to the Owner Trustee,
as of January 16, 2002, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of January 16, 2002, of the foregoing
contribution, which constituted the initial Owner Trust Estate and was 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.
Section 2.6 Declaration of Trust. The Owner Trustee hereby declares that it
shall hold the Owner Trust Estate (in the name of the Trust and not in the Owner
Trustee's name for the Trust, except as required by, and in accordance with,
Section 2.8) 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.
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Section 2.7 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.
Section 2.8 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. Any such trustee shall take such part of
the Owner Trust Estate subject and subordinate to the security interest of the
Indenture Trustee therein established under the Indenture, and such trustee's
acceptance of its appointment shall constitute acknowledgment of such security
interest.
Section 2.9 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.
Section 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(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 contemplated to be transferred to the Trust pursuant to
the Trust Sale and Servicing Agreement.
(b) 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.
(c) 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.
(d) 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
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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.
Section 2.11 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
Section 3.1 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.
Section 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set forth in
Exhibit A and shall be issued in minimum denominations of $20,000 and integral
multiples of $1,000 in excess thereof; provided, however, that one Certificate
may be issued in a denomination that includes any residual amount. 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.
(b) The Definitive Certificates shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
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steel engraved borders) all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form. The terms of
the Certificates set forth in Exhibit A shall form part of this Agreement.
Section 3.3 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 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.
Section 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(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.
(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.
(c) 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.
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(d) 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.
(e) 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.
Section 3.5 Mutilated, Destroyed, Lost or Stolen CertificatesIf (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.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to Section 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) or
such payment 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.
(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) 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
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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.
(e) 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.
Section 3.6 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.
Section 3.7 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.
Section 3.8 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.
Section 3.9 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
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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.
Section 3.10 Initial Certificate Issuance. On the Closing Date, all of the
Certificates shall be issued to the Seller as definitive fully registered
Certificates.
Section 3.11 Book-Entry Certificates. Except for the Certificates issued to
the Seller, the Certificates, upon original issuance, shall be issued in the
form of a printed Certificate or Certificates representing Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by or on behalf of the Trust. Such Certificate or Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency and no Certificate Owner other
than the Seller shall receive a definitive Certificate representing such
Certificate Owner's interest in such Certificate, except as provided in Section
3.13. Unless and until definitive fully registered Certificates (the "Definitive
Certificates") shall have been issued to Certificate Owners pursuant to Section
3.13:
(a) the provisions of this Section 3.11 shall be in full force and effect;
(b) the Certificate Registrar and the Owner Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Agreement (including the
payment of principal of and interest on the Certificates and the giving of
instructions or directions hereunder) as the sole Holder of the Certificate, and
shall have no obligation to the Certificate Owners;
(c) to the extent that the provisions of this Section 3.11 conflict with
any other provisions of this Agreement, the provisions of this Section 3.11
shall control;
(d) the rights of the Certificate Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants, unless and until Definitive Certificates are
issued pursuant to Section 3.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Certificates to such
Clearing Agency Participants;
(e) whenever this Agreement requires or permits actions to be taken based
upon instructions or directions of Holders of Certificates evidencing a
specified percentage of the Voting Interests, the Clearing Agency shall be
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deemed to represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage of
Voting Interests and has delivered such instructions to the Owner Trustee;
provided, however, that the provisions of this Section 3.11 shall not be
applicable in respect of Certificates issued to the Seller. The Seller or the
Owner Trustee may set a record date for the purpose of determining the identity
of Holders of Certificates entitled to vote or to consent to any action by vote
as provided in this Agreement.
Section 3.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency and shall have no further obligation to the Certificate Owners.
Section 3.13 Definitive Certificates. If (a) the Administrator advises the
Owner Trustee in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect to the Certificates and
the Administrator is unable to locate a qualified successor, (b) the
Administrator at its option advises the Owner Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency, or (c) after the
occurrence of an Event of Default or a Servicer Default, Certificate Owners
representing beneficial interests aggregating at least a majority of the Voting
Interests advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interest
of the Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Owner Trustee of the printed Certificate or
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions, the Owner Trustee shall execute and
authenticate the Definitive Certificates in accordance with the instructions of
the Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Owner Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders.
Section 3.14 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.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 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 and not more than 45 days
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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);
(b) 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;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Certificateholders;
(e) 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
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.2 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.
Section 4.3 Action by Certificateholders with Respect to Bankruptcy.
Notwithstanding any prior termination of this Agreement, 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 Certificateholders
(including the Seller) and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent; 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.
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Section 4.4 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.
Section 4.5 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.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account.
(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 2002-1 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.
(b) 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.
Section 5.2 Application of Trust Funds.
(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.
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Notwithstanding the foregoing or anything else to the contrary in this Agreement
or the other Basic Documents, if and for 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.
(b) 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 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 if and for so long as the Seller is the sole Certificateholder.
(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 if and for 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 Section 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) 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.
Section 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if (x) the
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Certificates are Definitive Certificates, and such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Record Date and the distribution required to be
made to such Holder on such Distribution Date exceeds $100,000 or (y) the
Certificates are Book-Entry Certificates, or, (ii) if neither clause (i)(x) nor
clause (i)(y) is applicable, by check mailed to such Certificateholder at the
address of such Certificateholder appearing in the Certificate Register.
Section 5.4 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 Section 5.2(c) with respect to income or
distributions to Certificateholders. In the event that the Internal Revenue
Service were to contend successfully that the Trust is not a grantor trust but
is rather a partnership for federal income tax purposes, the Trust shall
allocate items of income, gain, deduction and loss to the partners of the Trust
in accordance with their economic interests in the Trust. With respect to
interest expense of the Trust, the Trust shall allocate to the
Certificateholders their share of the entire amount of such interest expense.
Section 5.5 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.
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ARTICLE VI
THE OWNER TRUSTEE
Section 6.1 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) 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.
(c) 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.
(d) 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:
(i) this Section 6.1(d) shall not limit the effect of Section 6.1(a)
or (b);
(ii) 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
(iii) 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) 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.
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Section 6.2 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.
Section 6.3 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):
(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;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
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Document, if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the Certificate Balance of and
interest on the Certificates;
(e) 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 other than as explicitly set forth herein 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;
(f) 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
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
Section 6.4 Action upon Instruction by Certificateholders.
(a) 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.
(b) 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.
(c) 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.
Section 6.5 Furnishing of Documents. The Owner Trustee shall furnish to the
Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(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.
(b) 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.
(c) 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
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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.
(d) 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.
Section 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties 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.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: 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.
Section 6.8 Owner Trustee May Own Certificates and Notes. Bankers Trust
(Delaware) or any successor Owner Trustee in its individual or any other
capacity may become the owner or pledgee of Certificates or Notes and may deal
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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.
Section 6.9 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
external 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.
Section 6.10 Replacement of Owner Trustee.
(a) 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;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) 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
(iv) 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.
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(c) 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.
(d) 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.
(e) 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.
Section 6.11 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.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) 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 the name of the Trust and not in
such Person's name for the Trust, except to the extent otherwise required by,
and in accordance with, Section 2.8), 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
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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:
(i) 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;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) 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) 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.
Section 6.13 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
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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 Ratings
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.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) 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), the Interest Rate Swaps 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.
(b) Neither the Seller nor any Certificateholder shall be entitled to
revoke or terminate the Trust or this Agreement.
(c) 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 Section 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.
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(d) 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 Section 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.
(e) Upon the winding up and termination of the Trust in accordance with
Section 3808 of the Business Trust Statute and this Section, 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.
ARTICLE VIII
AMENDMENTS
Section 8.1 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.
Section 8.2 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
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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.
Section 8.3 Form of Amendments.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
ARTICLE IX
MISCELLANEOUS
Section 9.1 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.
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Section 9.2 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.
Section 9.3 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:
(a) such Certificate Owner must meet all requirements set forth in the
Business Trust Statute; and
(b) 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.
Section 9.4 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.
Section 9.5 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.
Section 9.6 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.
Section 9.7 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.
Section 9.8 No Petition. The Owner Trustee by entering this Trust Agreement
and each Certificateholder or Certificate Owner, by accepting a Certificate (or
interest therein) issued hereunder, hereby covenant and agree that they shall
not (nor shall they join with or solicit another person to), prior to the day
that is one year and one day after the termination of the Trust and of each
other trust heretofore formed by the Seller, 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
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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.
Section 9.9 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. In the event that any of the foregoing
covenants of each Certificateholder and Certificate Owner is prohibited by, or
declared illegal or otherwise unenforceable against any such Certificateholder
or Certificate Owner under applicable law by any court or other authority of
competent jurisdiction, and, as a result, a Certificateholder or Certificate
Owner is deemed to have an interest in any assets of the Seller or any Affiliate
of the Seller other than the Trust ("other assets"), each Certificateholder and
Certificate Owner agrees that (i) its claim against any such other assets shall
be, and hereby is, subject and subordinate in all respects to the rights of
other Persons to whom rights in the other assets have been expressly granted
("entitled Persons"), including to the payment in full of all amounts owing to
such entitled Persons, and (ii) the covenant set forth in the preceding clause
(i) constitutes a "subordination agreement" within the meaning of, and subject
to, Section 510(a) of the Bankruptcy Code.
Section 9.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 9.11 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.12 [Reserved]
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Section 9.13 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.
Section 9.14 Effect of Amendment and Restatement. It is the intent of the
parties hereto that this Trust Agreement shall as of January 24, 2002, replace
in its entirety the Original Trust Agreement; provided, that with respect to the
period of time from January 16, 2002 through January 24, 2002, the rights and
obligations of the parties shall be governed by the Original Trust Agreement;
provided further, that the amendment and restatement of the Original Trust
Agreement shall not affect any of the grants, conveyances or transfers
contemplated by the Original Trust Agreement to have occurred prior to the date
hereof.
* * * * *
27
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:
Title:
CAPITAL AUTO RECEIVABLES, INC.
By: R. L. STRAUB
__________________________
Name: R. L. Straub
Title: Manager - Securitization
Acknowledged and Accepted:
BANKERS TRUST COMPANY
as Paying Agent
By: __________________________
Name:
Title:
EXHIBIT A
NUMBER R- $_____________
CUSIP NO.____
SEE REVERSE FOR CERTAIN DEFINITIONS
CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
4.07% 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 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 2002-1 (the "Trust") formed by Capital Auto Receivables,
Inc., a Delaware corporation.
The Trust was created pursuant to a trust agreement, dated as of January
16, 2002 (as amended and restated as of January 24, 2002 and 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
"4.07% 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 February 15, 2002 (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.
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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) 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 or Certificate Owner 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 Owner 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 Owner 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 Owner Trustee or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Seller or the Owner 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 that with respect to
Certificates registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments shall be
made by wire transfer in immediately available funds to the account designated
by such nominee. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this 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.
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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.
3
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.
Dated: January 24, 2002 CAPITAL AUTO RECEIVABLES ASSET TRUST 2002-1
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as Owner
Trustee
By: CHARLES C.GEITER
____________________________
Name: Charles C. Greiter
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 capacity but solely OR not in its individual capacity but solely
as Owner Trustee as Owner Trustee
by Bankers Trust Company,
as Authenticating Agent
By: CHARLES C. GREITER By: CHARLES C. GREITER
________________________ ____________________________
Name: Charles C. Greiter Name: Charles C. Greiter
Title: Attorney-in-Fact Title: Attorney-in-Fact
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 Certificates are issuable only as registered Certificates without
coupons in denominations of $20,000 or integral multiples of $1,000 in excess
thereof; provided, however, that one Certificate may be issued in a denomination
that includes any residual amount. As provided in the Trust Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same; provided,
however, that no Certificate may be subdivided such that the denomination of any
resulting Certificate is less than $20,000. No service charge shall be made for
any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
1
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 the
Trust Agreement.
2
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
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(Please print or type name and address, including postal zip code, of assignee)
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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 2002-1
THIS Certificate of Trust of Capital Auto Receivables Asset Trust 2002-1
(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 2002-1.
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 January __, 2002.
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
By: ____________________________________
Name:
Title: