EXHIBIT 4.5
FORM OF TRUST AGREEMENT
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DAIMLERCHRYSLER MASTER OWNER TRUST
TRUST AGREEMENT
dated as of [_________________], 2002
between
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Beneficiary and as Transferor,
and
[---------------------],
as Owner Trustee
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions..............................................1
Section 1.02 Generic Terms............................................3
ARTICLE II.
ORGANIZATION; DECLARATION OF TRUST
BY THE OWNER TRUSTEE; COLLATERAL CERTIFICATE
Section 2.01 Formation of Trust; Name.................................3
Section 2.02 Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate.............................3
Section 2.03 Purposes and Powers; Trust To Operate as a
Single Purpose Entity ...................................4
Section 2.04 Appointment of Owner Trustee.............................6
Section 2.05 Declaration of Trust.....................................6
Section 2.06 Title to Trust Estate....................................6
Section 2.07 Nature of Interest in the Trust Estate...................6
Section 2.08 Creation of Trust; Principal Office of Owner Trustee.....6
Section 2.09 Tax Matters..............................................6
Section 2.10 Fiscal Year..............................................6
Section 2.11 Transfer of Collateral Certificate.......................6
Section 2.12 Closing..................................................7
Section 2.13 Books and Records........................................7
Section 2.14 Series 2002-CC Certificateholder.........................7
Section 2.15 Representations and Warranties of the Transferor.........7
Section 2.16 Protection of Title to Collateral Certificate............8
Section 2.17 Assignment to Indenture Trustee..........................9
Section 2.18 Merger or Consolidation of, or Assumption of the
Obligations of, Transferor...............................9
Section 2.19 Limitation on Liability of Transferor and Others.........9
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01 Representations and Warranties of the Beneficiary........9
ARTICLE IV.
DISTRIBUTIONS OF FUNDS
Section 4.01 Distribution of Funds...................................10
Section 4.02 Payments from Trust Estate Only.........................10
Section 4.03 Method of Payment.......................................10
Section 4.04 Establishment of Account................................11
ARTICLE V.
DUTIES OF THE OWNER TRUSTEE
Section 5.01 Action Upon Instructions................................11
Section 5.02 No Duty to Act Under Certain Circumstances..............11
Section 5.03 No Duties Except Under Specified Agreements or
Instructions. ..........................................12
Section 5.04 Trust Operation.........................................12
Section 5.05 Execution of Documents..................................13
Section 5.06 Nonpetition Covenants...................................13
ARTICLE VI.
CONCERNING THE TRUSTEE BANK
Section 6.01 Acceptance of Trust and Duties..........................13
Section 6.02 Furnishing of Documents.................................14
Section 6.03 Representations and Warranties as to the Trust Estate...14
Section 6.04 Signature of Returns....................................14
Section 6.05 Reliance; Advice of Counsel.............................14
Section 6.06 Not Acting in Individual Capacity.......................15
Section 6.07 Representations and Warranties..........................15
ARTICLE VII.
TERMINATION OF TRUST AGREEMENT
Section 7.01 Termination of Trust Agreement..........................15
ARTICLE VIII.
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND SEPARATE OWNER TRUSTEES
Section 8.01 Resignation and Removal of the Owner Trustee;
Appointment of Successors...............................16
Section 8.02 Transfer Procedures.....................................16
Section 8.03 Qualification of Owner Trustee..........................16
Section 8.04 Co-trustees and Separate Owner Trustees.................16
ARTICLE IX.
AMENDMENTS
Section 9.01 Amendments..............................................17
ARTICLE X.
OWNERSHIP INTERESTS AND CERTIFICATES
Section 10.01 Issuance of Trust Certificates.........................17
Section 10.02 Beneficial Interest; Prohibitions on Transfer..........18
Section 10.03 Lost or Destroyed Trust Certificate....................18
ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses.........................19
Section 11.02 Indemnification........................................19
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ARTICLE XII.
MISCELLANEOUS
Section 12.01 Conveyance by the Owner Trustee is Binding.............19
Section 12.02 Instructions; Notices..................................19
Section 12.03 Severability...........................................20
Section 12.04 Limitation of Liability................................20
Section 12.05 Separate Counterparts..................................20
Section 12.06 Successors and Assigns.................................20
Section 12.07 Headings...............................................21
Section 12.08 Governing Law..........................................21
Section 12.09 No Recourse............................................21
Section 12.10 Acceptance of Terms of Agreement.......................21
EXHIBITS
EXHIBIT A [FORM OF TRUST CERTIFICATE]........................... A-1
EXHIBIT B CERTIFICATE OF TRUST OF DAIMLERCHRYSLER MASTER OWNER
TRUST.............................................. B-1
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TRUST AGREEMENT dated as of [________], 2002, between
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC ("DCWR"), a Delaware limited
liability company, as Beneficiary and as Transferor, and
[_____________________], a [_____________], as owner trustee (the "Owner
Trustee").
In consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. (a) Capitalized terms used herein and
not defined herein have the meaning assigned to them in the Series 2002-CC
Supplement or the Pooling and Servicing Agreement. For purposes of this
Agreement, the following terms have the following meanings:
"Agreement" means this Trust Agreement, as the same may be
amended, modified or supplemented from time to time.
"Beneficiary" means DCWR, as beneficial owner of the Trust, and
each Permitted Affiliate Transferee and other transferee under Section 10.02.
"Beneficiary Trust Account" means the account established by the
Owner Trustee on behalf of the Trust in accordance with Section 4.04.
"CARCO Receivables Trust" means CARCO Auto Loan Master Trust.
"CARCO Receivables Trust Trustee" means The Bank of New York as
trustee under the Pooling and Servicing Agreement and each successor trustee
under the Pooling and Servicing Agreement.
"Certificate of Trust" shall mean the Certificate of Trust in
the form attached hereto as Exhibit B which has been filed for the Trust
pursuant to Section 3810(a) of the Delaware Business Trust Act.
"Code" means the Internal Revenue Code of 1986, as it may be
amended from time to time.
"Collateral Certificate" means the Series 2002-CC Certificate
issued pursuant to the Pooling and Servicing Agreement and the Series 2002-CC
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Delaware Business Trust Act" means the Delaware Business Trust
Act, 12 Del. C. ss. ss. 3801, et seq., as amended from time to time, and any
successor statute thereto. "Deliveries" is defined in Section 12.02.
"Disqualification Event" with respect to the Owner Trustee means
(a) the bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the
occurrence of the date of resignation of the Owner Trustee, as set forth in a
notice of resignation given pursuant to Section 8.01, or (c) the delivery to
the Owner Trustee of the instrument or instruments of removal referred to in
Section 8.01 (or, if such instruments specify a later effective date of
removal, the occurrence of such later date), or (d) failure of the Owner
Trustee to qualify under the requirements of Section 8.03.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture between the Trust and the
Indenture Trustee, which by its terms is identified as being the Indenture
referred to herein, as amended, restated, supplemented or otherwise modified
from time to time.
"Indenture Collateral" is defined in Section 2.11(b).
"Indenture Trustee" means [________] as trustee under the
Indenture, and each successor trustee under the Indenture.
"Note" is defined in the Indenture.
"Noteholder" is defined in the Indenture.
"Note Rating Agency" is defined in the Indenture.
"Owner Trustee" means [____________], a [_____________], not in
its individual capacity but solely in its capacity as owner trustee hereunder,
and each successor trustee under Article VIII, in its capacity as owner
trustee hereunder, and each co-trustee under and to the extent provided in
Section 8.04, in its capacity as owner trustee hereunder.
"Ownership Interest" means the Ownership Interest issued by the
Trust hereunder with the rights and privileges set forth in Section 10.01.
"Person" means any legal person, including any individual,
corporation, partnership (general or limited), limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization, governmental entity or other entity of similar nature.
"Periodic Filing" means any filing or submission that the Trust
is required to make with any federal, state or local authority or regulatory
agency.
"Permitted Affiliate Transferee" is defined in Section 10.02.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement, dated as of December 5, 2001, among DCWR DCS,
as Servicer, and The Bank of New York, as CARCO Receivables Trustee, as
amended, restated, supplemented or otherwise modified from time to time,
including as supplemented by the Series 2002-CC Supplement.
"Requirements of Law" shall mean, for any Person, the
certificate of incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to which
such Person is subject, whether federal, state or local (including without
limitation, usury laws, the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal Reserve System).
"Secretary of State" means the Office of the Secretary of State
of the State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Interest" is defined in the Pooling and Servicing
Agreement.
"Series 2002-CC Supplement" means the Series 2002-CC Supplement,
relating to the Pooling and Servicing Agreement, which by its terms is
identified as being the Series 2002-CC Supplement referred to herein, as
amended, restated, supplemented or otherwise modified from time to time.
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"Transaction Documents" mean the Indenture, any Indenture
Supplement thereto, the Trust Certificate, the Certificate of Trust and other
documents delivered in connection herewith and therewith.
"Transferor" means DaimlerChrysler Wholesale Receivables LLC, a
Delaware limited liability company, and its successors and assigns.
"Trust" means the trust created by this Agreement and the filing
of the Certificate of Trust with the Secretary of State.
"Trust Certificate" is defined in Section 10.01.
"Trust Estate" is defined in Section 2.04.
"Trustee Bank" means [_____________________] in its individual
capacity, each bank appointed as successor Owner Trustee under Article VIII in
its individual capacity and each bank appointed as co-trustee under and to the
extent provided in Section 8.04 in its individual capacity.
"UCC" means the Uniform Commercial Code as in effect in the
State of Delaware.
Section 1.02 Generic Terms. (a) The terms "hereby," "hereof,"
"hereto," "herein," "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Section,"
"Exhibit" or "Schedule" will refer to a Section of, or an Exhibit or Schedule
to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the
singular number mean and include the plural number and vice versa.
(d) The terms "include," "including" and similar terms will be
construed as if followed by the phrase "without limitation."
(e) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant
hereto or in connection herewith means such agreement, instrument or statute
as from time to time amended, modified or supplemented and includes (in the
case of agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II.
ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE;
COLLATERAL CERTIFICATE
Section 2.01 Formation of Trust; Name. The Trust is hereby
created, to be named "DaimlerChrysler Master Owner Trust", under which name
the Owner Trustee or the Beneficiary may conduct any activities and business
of the Trust contemplated hereby, execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust.
Section 2.02 Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate. The Beneficiary hereby sells, assigns, grants
and transfers, over to the Owner Trustee, as of the date hereof, $1.00. The
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Owner Trustee hereby acknowledges receipt in trust from the Beneficiary, as of
the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Estate.
Section 2.03. Purposes and Powers; Trust To Operate as a Single
Purpose Entity. (a) The purpose of the Trust is to engage solely in a program
of acquiring interests in the CARCO Receivables Trust and issuing Notes under
the Indenture and related activities. Without limiting the generality of the
foregoing, the Trust may and shall have the power and authority to:
(i) acquire from DCWR the Collateral Certificate, and other
certificates of beneficial interest, of the CARCO Receivables Trust;
(ii) from time to time, grant a security interest in the
Collateral Certificate, or other beneficial interests in the CARCO
Receivables Trust, including the pledge of any portion of the
Investor Interest of the Collateral Certificate, and grant a security
interest in accounts established for the benefit of indebtedness of
the Trust under the Indenture;
(iii) from time to time authorize and approve the issuance
of Notes pursuant to the Indenture without limitation to aggregate
amounts and, in connection therewith, determine the terms and
provisions of such Notes and of the issuance and sale thereof,
including the following:
(A) determining the principal amount of the Notes;
(B) determining the maturity date of the Notes;
(C) determining the rate of interest, if any, to be paid
on the Notes;
(D) determining the price or prices at which such Notes
will be sold by the Trust;
(E) determining the provisions, if any, for the redemption
of such Notes;
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under
which the Notes may be issued and the banks or trust companies
to act as trustees, fiscal agents and paying agents thereunder;
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes
under the Securities Act of 1933, the qualification of
indentures under the Trust Indenture Act of 1939 and the
qualification under any other applicable federal, foreign,
state, local or other governmental requirements;
(H) preparing any prospectus, offering memorandum, private
placement memorandum or other descriptive material relating to
the issuance of the Notes;
(I) listing the Notes on any United States or non-United
States securities exchange;
(J) entering into one or more interest rate or currency
swaps, caps, collars, guaranteed investment contracts or other
derivative agreements with counterparties (which may include,
without limitation, DCWR or any of its affiliates) to manage
interest rate or currency risk relating to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes; and
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(L) arranging for the underwriting, subscription, purchase
or placement of the Notes and selecting underwriters, managers
and purchasers or agents for that purpose;
(iv) from time to time receive payments and proceeds with
respect to the Collateral Certificate and other certificates of
beneficial interest in the CARCO Receivables Trust and the Indenture
and either invest or distribute those payments and proceeds;
(v) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vi) from time to time make and receive payments pursuant
to derivative agreements;
(vii) from time to time make payments on the Notes;
(viii) from time to time acquire additional collateral from
DCWR LLC or any special purpose vehicle established by DCWR LLC;
(ix) from time to time perform such obligations and
exercise and enforce such rights and pursue such remedies as may be
appropriate by virtue of the Trust being party to any of the
agreements contemplated in clauses (i) through (viii) above; and
(x) if the Collateral Certificate is the only outstanding
investor certificate issued by the CARCO Receivables Trust, dissolve
the CARCO Receivables Trust and terminate the Pooling and Servicing
Agreement, acquire the Receivables directly and enter into a servicing
agreement and other documents and amend any documents to reflect the
direct ownership of the Receivables.
In connection with any of the foregoing, the Trust may (x)
execute and deliver, and/or accept, such instruments, agreements,
certificates, Uniform Commercial Code financing statements and other
documents, and create such security interests, as may be necessary or
desirable in connection therewith, and (y) subject to the terms of this
Agreement, take such other action as may be necessary, helpful or incidental
to the foregoing.
(b) The Owner Trustee and the Beneficiary, on behalf of the
Trust, are hereby authorized and shall have the power to execute and deliver
from time to time loan agreements, underwriting agreements, selling agent
agreements, purchase agreements, private placement agreements, swap and other
derivative agreements, including performance agreements, indentures, indenture
supplements, notes, security agreements, and other agreements and instruments
as are consistent with the purposes of the Trust. Without limiting the
generality of the foregoing, the Beneficiary and the Owner Trustee, on behalf
of the Trust, are specifically authorized to execute and deliver without any
further act, vote or approval, and notwithstanding any other provision of this
Agreement, the Delaware Business Trust Act or other applicable law, rule or
regulation, agreements, documents or securities relating to the purposes of
the Trust including:
(i) the Indenture, each Indenture Supplement and each
Issuer's Certificate (as defined in the Indenture);
(ii) the Notes;
(iii) each interest rate or currency swap, cap, collar,
guaranteed investment contract or other derivative agreement,
including agreements related thereto, between the Trust and a
counterparty (which may include, without limitation, DCWR or any of
its affiliates) to manage interest rate or currency risk relating to
the Notes; and
(iv) any other document necessary or desirable in
connection with the fulfillment of the purposes of the Trust
described in, and pursuant to, Section 2.03(a).
The authorization set forth in the preceding sentence will not
be deemed a restriction on the power and authority of the Beneficiary and the
Owner Trustee, on behalf of the Trust, to execute and deliver other
agreements, documents instruments and securities or to take other actions on
behalf of the Trust in connection with the fulfillment of the purposes of the
Trust described in, and pursuant to, Section 2.03(a).
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(c) The Owner Trustee and the Beneficiary will at all times
maintain the books, records and accounts of the Trust separate and apart from
those of any other Person, and will cause the Trust to hold itself out as
being a Person separate and apart from any other Person.
(d) If the Trust enters into any interest rate swap or any other
swap or derivative instrument (each, a "derivative instrument") in connection
with its issuance of a series of Notes, such derivative instrument shall be
entered into at the time of issuance of such series of Notes, at the time of
issuance shall not have a notional amount in excess of the principal amount
of such Notes and is not thereafter expected to exceed such principal amount
outstanding from time to time, shall not require the Trust to make
discretionary decisions (other than decisions relating to the servicing of the
Receivables) and shall have characteristics that relate to and are intended to
hedge (partly or fully) against some risk or risks related to such series of
Notes or the Receivables or Eligible Investments.
(e) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
Section 2.04 Appointment of Owner Trustee. The Beneficiary
hereby appoints [_____________________] as Owner Trustee of the Trust
effective as of the date hereof, to have all the rights, powers and duties set
forth herein and in the Delaware Business Trust Act.
Section 2.05 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the initial Trust Estate, the Collateral
Certificate and the other documents and assets described in Section 2.03,
together with any payments, proceeds or income of any kind from such documents
or assets or any other source and any other property held under this Agreement
(collectively, the "Trust Estate"), upon the trust set forth herein and for
the sole use and benefit of the Beneficiary. It is the intention of the
parties hereto that the Trust constitute a business trust under the Delaware
Business Trust Act and that this Agreement constitute the governing instrument
of such business trust. The parties hereto agree that they will take no action
contrary to the foregoing intention. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and,
to the extent not inconsistent herewith, in the Delaware Business Trust Act
with respect to accomplishing the purposes of the Trust.
Section 2.06 Title to Trust Estate. Title to all of the Trust
Estate will be vested in the Trust as a separate legal entity until this
Agreement terminates pursuant to Article VII; provided, however, that if the
laws of any jurisdiction require that title to any part of the Trust Estate be
vested in the trustees of a trust, then title to that part of the Trust Estate
will be deemed to be vested in the Owner Trustee or any co-trustee or separate
trustee, as the case may be, appointed pursuant to Article VIII.
Section 2.07 Nature of Interest in the Trust Estate. The
Beneficiary will not have any legal title to or right to possession of any
part of the Trust
Section 2.08 Creation of Trust; Principal Office of Owner
Trustee. The Owner Trustee will file a certificate of trust relating to the
Trust with the Secretary of State and maintain the Owner Trustee's principal
office in the State of Delaware. However, nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New
York, and payments will be made by the Trust only from Delaware or New York.
The Trust will be located and administered in the State of Delaware.
Section 2.09 Tax Matters. The parties hereto intend that, for
income and franchise tax purposes, the Trust will be treated as a security
device and disregarded as an entity and its assets shall be treated as owned
in whole by the Beneficiary, and the parties hereto will file all their tax
returns in a manner consistent with that intent unless otherwise required by a
taxing authority. Except as otherwise expressly provided herein, any tax
elections required or permitted to be made by the Trust under the Code or
otherwise will be made by the Beneficiary. The Trust will not elect to be
treated as a corporation for any tax purpose.
Section 2.10 Fiscal Year. The fiscal year of the Trust will end
on the last day of December of each year.
Section 2.11 Transfer of Collateral Certificate.
(a) In consideration of the Trust's delivery to or upon the
order of the Transferor of the net proceeds of the initial sale of the Notes,
the Transferor does hereby transfer, assign, set over, pledge and otherwise
convey to the Trust, without recourse (subject to the obligations herein) all
right, title and interest of the Transferor in and to the Collateral
Certificate and the proceeds thereof. This Agreement also shall be deemed to
be and hereby is a security agreement within the meaning of the UCC, and the
conveyance by the Transferor provided for in this Agreement shall be deemed to
be and hereby is a grant by the Transferor to the Trust of a security interest
in and to
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all of the Transferor's right, title and interest, whether now owned or
hereafter acquired, in, to and under all accounts, general intangibles,
chattel paper, instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from, or relating to the Collateral
Certificate and the proceeds thereof, to secure the rights of the Trust under
this Agreement and the obligations of the Transferor hereunder. The Transferor
and the Trust shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that the security interest in the
Collateral Certificate created hereunder will be a perfected security interest
of first priority under applicable law and will be maintained as such
throughout the term of this Agreement.
(b) To the extent that the Transferor retains any interest in
the Collateral Certificate, the Transferor hereby grants to the Indenture
Trustee for the benefit of the holders of the Notes a security interest in and
to all of the Transferor's right, title, and interest, whether now owned or
hereafter acquired, in, to, and under all accounts, general intangibles,
chattel paper, instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit, and investment
property consisting of, arising from, or relating to the Collateral
Certificate and the proceeds thereof (collectively, the "Indenture
Collateral"), to secure performance of all of the obligations of the
Transferor under the Pooling and Servicing Agreement, the Series 2002-CC
Supplement and the Transaction Documents. With respect to the Indenture
Collateral, the Indenture Trustee shall have all of the rights it has under
the Transaction Documents. The Indenture Trustee shall have all of the rights
of a secured creditor under the UCC in New York and the UCC in Delaware.
Section 2.12 Closing. The transfer, assignment, set-over, pledge
and conveyance of the Collateral Certificate and the issuance of the Notes
shall take place at the offices of Sidley Austin Brown & Wood LLP, 875 Third
Avenue, New York, New York 10022 on the Closing Date (as defined in the Series
2002-CC Supplement), simultaneously with the closing of the transactions
contemplated by the Pooling and Servicing Agreement, the Series 2002-CC
Supplement and the other Transaction Documents.
Section 2.13 Books and Records. In connection with the transfer,
assignment, set-over, pledge and conveyance set forth in Section 2.11, the
Transferor agrees to record and file, at its own expense, any financing
statements (and continuation statements with respect to such financing
statements when applicable) required to be filed with respect to the
Collateral Certificate assigned by the Transferor hereunder, meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary under the applicable UCC to perfect the transfer, assignment,
set-over, pledge and conveyance of the Collateral Certificate to the Issuer,
and to deliver a file- stamped copy of such financing statements or other
evidence of such filings to the Issuer on or prior to the Closing Date
(excluding such continuation and similar statements, which shall be delivered
promptly after filing).
In connection with the transfer, assignment, set-over, pledge
and conveyance hereunder, the Transferor further agrees, at its own expense,
on or prior to the Closing Date to cause the CARCO Receivables Trust Trustee
to register the Trust as the registered owner of the Collateral Certificate.
Section 2.14 Series 2002-CC Certificateholder. The Indenture
Trustee shall be the Series 2002-CC Certificateholder for all purposes under
the Pooling and Servicing Agreement and the Series 2002-CC Supplement. To the
extent the Collateral Certificate is sold or otherwise transferred to a
third-party in connection with the sale or liquidation of the Trust Estate
pursuant to the provisions of the Indenture, such transferee shall be the
Series 2002-CC Certificateholder for all purposes under the Pooling and
Servicing Agreement.
Section 2.15 Representations and Warranties of the Transferor.
The Transferor makes the following representations and warranties as to the
Collateral Certificate on which the Issuer is deemed to have relied in
acquiring the Collateral Certificate. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of each
Transfer Date, but shall survive the transfer and assignment of the Collateral
Certificate to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Title. It is the intention of the Transferor that the
transfer and assignment herein contemplated constitute either (i) a sale of
the Collateral Certificate, (ii) a grant of a perfected security interest
therein from the Transferor to the Issuer or (iii) a grant of a perfected
security interest therein from the Transferor to the Indenture Trustee. The
Collateral Certificate has not been sold, transferred, assigned or pledged by
the Transferor to any Person other than pursuant to this Agreement or the
Indenture. Immediately prior to the transfer
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and assignment herein contemplated, the Transferor had good and marketable
title to the Collateral Certificate, free and clear of all liens and rights of
others and, immediately upon the transfer thereof, the Issuer shall have good
and marketable title to the Collateral Certificate, free and clear of all
liens of rights of others or a first priority perfected security interest
therein; and the transfer has been perfected, by the filing of appropriate
financing statements and the taking of such other action pursuant to the UCC,
under the UCC. The Transferor has no knowledge of any current statutory or
other non-consentual liens to which the Collateral Certificate is subject.
(b) All Actions Taken. All actions necessary under the
applicable UCC in any jurisdiction to be taken (i) to give the Issuer a first
priority perfected security interest or ownership interest in the Collateral
Certificate, and (ii) to give the Indenture Trustee a first priority perfected
security interest in the Collateral Certificate (including, without
limitation, UCC filings with the Delaware Secretary of State), in each case
subject to any statutory or other non-consentual liens with respect to the
Collateral Certificate, have been taken. The Transferor has no knowledge of
any current statutory or other non-consentual liens which the Collateral
Certificate is subject.
(c) No Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Transferor of this Agreement or any other Transaction Document, the
performance by the Transferor of the transactions contemplated by this
Agreement or any other Transaction Document and the fulfillment by the
Transferor of the terms hereof or thereof, have been obtained or have been
completed and are in full force and effect (other than approvals,
authorizations, consents, orders and other actions which if not obtained or
completed or in full force or effect would not have a material adverse effect
on the Transferor or the Issuer or upon the collectibility of the Collateral
Certificate or upon the ability of the Transferor to perform its obligations
under this Agreement).
(d) Transfers Comply. Each of (i) the transfer of the Collateral
Certificate by the Transferor to the Issuer pursuant to the terms of this
Agreement, (ii) the pledge of the Collateral Certificate by the Issuer to the
Indenture Trustee pursuant to the terms of the Indenture and (iii) the pledge
of the Collateral Certificate by the Transferor to the Indenture Trustee
pursuant to the terms of this Agreement, comply with the provisions of the
Pooling and Servicing Agreement relating to transfers of the Collateral
Certificate.
Section 2.16 Protection of Title to Collateral Certificate.
(a) The Transferor shall take all actions necessary, and the
Issuer shall cooperate with the Transferor, if applicable, to perfect, and
maintain perfection of, the interests of the Issuer in the Collateral
Certificate. The Transferor shall execute and file and cause to be executed
and filed such financing statements and continuation statements, all in such
manner and in such places as may be required by law fully to perfect,
maintain, and protect the interest of the Issuer in the Collateral Certificate
and in the proceeds thereof and the interest of the Indenture Trustee in the
Trust Estate and the proceeds thereof. The Transferor shall deliver (or cause
to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon as available following such filing.
(b) The Transferor shall not change its name, identity or
corporate structure or the jurisdiction of its organization in any manner that
might make any financing statement or continuation statement filed in
accordance with paragraph (a) above or otherwise seriously misleading within
the meaning of the UCC (regardless of whether such a filing was ever made),
unless it shall have given the Owner Trustee and the Indenture Trustee at
least five days' prior written notice thereof and, if applicable, shall have
timely filed appropriate amendments to any and all previously file financing
statements or continuation statements or timely filed additional UCC financing
statements in each case (so that the interests of the Issuer and the Indenture
Trustee is not adversely affected).
(c) The Transferor shall have an obligation to give the Owner
Trustee and the Indenture Trustee at least 60 days' prior written notice of
any change in the jurisdiction of its organization or any relocation of its
chief executive office or other change in location if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or
of any new financing statement (regardless of whether such a filing was ever
made) and shall promptly, if applicable, file any such amendment or new
financing statement.
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(d) The Owner Trustee shall permit the Indenture Trustee and its
agents at any time following reasonable notice and during normal business
hours to inspect, audit and make copies of and abstracts from the Owner
Trustee's records regarding the Collateral Certificate.
Section 2.17 Assignment to Indenture Trustee. The Transferor
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest
of the Issuer in, to and under the Collateral Certificate and the other
property constituting the Trust Estate and/or the assignment of any or all of
the Issuer's rights and obligations hereunder to the Indenture Trustee.
Section 2.18 Merger or Consolidation of, or Assumption of the
Obligations of, Transferor. Any Person (a) into which the Transferor may be
merged or consolidated, (b) which may result from any merger or consolidation
to which the Transferor shall be a party or (c) which may succeed to the
properties and assets of the Transferor substantially as a whole, which Person
in any of the foregoing cases executes an agreement of assumption to perform
every obligation of the Transferor under this Agreement, shall be the
successor to the Transferor hereunder without the execution or filing of any
other document or any further act by any of the parties to this Agreement;
provided, however, that (i) the Transferor shall have delivered to the Owner
Trustee and the Indenture Trustee an Officers' Certificate (as defined in the
Indenture) and an Opinion of Counsel (as defined in the Indenture) each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 2.19 and that all conditions precedent
provided for in this Agreement relating to such transaction have been complied
with, (ii) written confirmation from the Note Rating Agency (as defined in the
Indenture) that such transaction will not result in any Note Rating Agency
reducing or withdrawing its then existing rating of the Notes and (iii) the
Transferor shall have delivered to the Owner Trustee and the Indenture Trustee
an Opinion of Counsel either (A) stating that, in the opinion of such counsel,
all actions necessary to perfect the interests of the Owner Trustee and the
Indenture Trustee have been taken, including that all financing statements and
continuation statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the Owner
Trustee and Indenture Trustee, respectively, in the Collateral Certificate and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests. Following the effectiveness of the succession provided for in this
Section 2.18, the predecessor Transferor shall be released from any
obligations and liabilities provided for under the Transaction Documents other
than any obligations or liabilities incurred by such predecessor Transferor
prior to the effectiveness of such succession.
Section 2.19 Limitation on Liability of Transferor and Others.
The Transferor and any director or officer or employee or agent of the
Transferor may rely in good faith on the advice of counsel or on any document
of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Transferor, in its capacity as
such, shall not be under any obligation to appear in, prosecute or defend any
legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01 Representations and Warranties of the Beneficiary.
The Beneficiary hereby represents and warrants to the Owner Trustee as of the
date of this Agreement and as of the date of each increase in the Investor
Interest of the Collateral Certificate that:
(a) The Beneficiary is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has full limited liability company power, authority and legal
right to own its properties and conduct its credit card business as such
properties are presently owned and such business is presently conducted, and
to execute, deliver and perform its obligations under this Agreement.
(b) The Beneficiary is duly qualified to do business and is in
good standing (or is exempt from such requirement) in any state required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Beneficiary, in each jurisdiction in which
failure to so qualify or to obtain such
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licenses and approvals would have a material adverse effect on the interests
of the Noteholders hereunder or under the Indenture; provided, however, that
no representation or warranty is made with respect to any qualifications,
licenses or approvals which the Owner Trustee or the Indenture Trustee has or
may be required at any time to obtain, if any, in connection with the
transactions contemplated hereby or by any other Transaction Document to which
the Owner Trustee or the Indenture Trustee, as the case may be, is a party.
(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the
other Transaction Documents to which the Beneficiary is a party have been duly
authorized by the Beneficiary by all necessary corporate action on its part
and each of this Agreement and the other Transaction Documents to which the
Beneficiary is a party will remain, from the time of its execution, an
official record of the Beneficiary; the Beneficiary has the power and
authority to assign the property to be assigned to and deposited with the
Trust.
(d) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, result in any breach
of any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Beneficiary is a party or by which it or any of its properties are bound
(other than violations of such indentures, contracts, agreements, mortgages,
deeds of trust or other instruments which, individually or in the aggregate,
would not have a material adverse effect on the Beneficiary's ability to
perform its obligation under this Agreement).
(e) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Beneficiary.
(f) There are no proceedings or investigations pending or
threatened against the Beneficiary before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality
having jurisdiction over the Beneficiary (i) asserting the invalidity of this
Agreement or any of the Transaction Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
of the Transaction Documents, (iii) seeking any determination or ruling that,
in the reasonable judgment of the Beneficiary, would materially and adversely
affect the performance by the Beneficiary of its obligations under this
Agreement or the Transaction Documents, or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Transaction Documents.
ARTICLE IV.
DISTRIBUTIONS OF FUNDS
Section 4.01 Distribution of Funds. All funds received by the
Trust to the extent not encumbered by the Indenture and otherwise available
for distribution (or if encumbered by the Indenture, which have been released
by the relevant parties benefiting from such encumbrance) will be distributed
to the Beneficiary.
Section 4.02 Payments from Trust Estate Only. All payments to be
made by the Owner Trustee on behalf of the Trust under this Agreement will be
made only from the income and the capital proceeds derived from the Trust
Estate and only to the extent that the Owner Trustee on behalf of the Trust
will have received income or capital proceeds from the Trust Estate. The
Beneficiary agrees that it will look solely to the income and capital proceeds
derived from the Trust Estate (to the extent available for payment as herein
provided) and that, except as specifically provided herein, the Owner Trustee
will not be subject to any liability in its individual capacity under this
Agreement to the Beneficiary or to any other Person.
Section 4.03 Method of Payment. All amounts payable to the
Beneficiary pursuant to this Agreement will be paid by the Owner Trustee on
behalf of the Trust to the Beneficiary or a nominee therefor in such manner as
the Beneficiary may from time to time designate in written instructions to the
Owner Trustee. All funds received by the Owner Trustee on behalf of the Trust
not later than 2:00 p.m. (New York City time) on a Business Day will be
applied by the Owner Trustee on that Business Day. Funds received after that
time will be applied on the next following Business Day.
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Section 4.04 Establishment of Account. The Beneficiary hereby
authorizes the Owner Trustee to establish and maintain an account on behalf of
the Trust into which all funds received by the Owner Trustee on behalf of the
Trust shall be deposited. Such account shall be designated the Beneficiary
Trust Account.
ARTICLE V.
DUTIES OF THE OWNER TRUSTEE
Section 5.01 Action Upon Instructions. (a) It is the intention
of the Beneficiary that the powers and duties of the Owner Trustee are to be
purely ministerial only, and that the Beneficiary will have the power to
direct the Owner Trustee as to all nonministerial matters concerning the
administration of the Trust (to the extent such matters are within the powers
of the Beneficiary). Accordingly, subject to subsections 5.01(b), 5.01 (c),
and Article XII, the Beneficiary will direct the Owner Trustee in the
management of the Trust and the Trust Estate. Such direction shall be
exercised at any time only by written instruction of the Beneficiary delivered
to the Owner Trustee pursuant to this Article V.
(b) The Owner Trustee will take such action or actions as may be
specified in any instructions delivered in accordance with subsection 5.01(a);
provided, however, that the Owner Trustee will not be required to take any
such action if the Trustee Bank will have been advised by counsel that such
action (i) is contrary to the terms hereof or of any document contemplated
hereby to which the Trust or the Owner Trustee is a party or is otherwise
contrary to law, or (ii) is reasonably likely to result in liability on the
part of the Trustee Bank, unless the Trustee Bank will have received
additional indemnification or security satisfactory to the Trustee Bank from
the Beneficiary against all costs, expenses and liabilities arising from the
Owner Trustee's taking such action.
(c) The Beneficiary will not direct the Owner Trustee to take or
refrain from taking any action contrary to this Agreement, nor will the Owner
Trustee be obligated to follow any such direction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Transaction Document, or
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action to be adopted, the Owner Trustee will promptly give notice to
the Beneficiary requesting written instructions as to the course of action to
be adopted and, to the extent the Owner Trustee acts in good faith in
accordance with such written instructions received from the Beneficiary, the
Owner Trustee shall not be liable on account of such action to any Person. If
the Owner Trustee will not have received appropriate written instructions
within 30 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement, as it deems to be in the best interests of the Beneficiary, and
will have no liability to any Person for such action or inaction.
(e) The Owner Trustee will, subject to this Section 5.01, act in
accordance with the instructions given to it by the Beneficiary pursuant to
Section 5.01(b), and to the extent the Owner Trustee acts in good faith in
accordance with such instructions, the Owner Trustee will not be liable on
account of such action to any Person.
Section 5.02 No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Owner Trustee, except a Trustee Bank authorized as co-trustee,
will be required to take any action in any jurisdiction other than in the
State of Delaware if the taking of such action would (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or taking of any action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or governmental charge under the laws of
any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware becoming payable by the Trustee
Bank; or (iii) subject the Trustee Bank to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by the Trustee
Bank or the Owner Trustee, as the case may be, contemplated hereby. The Owner
Trustee shall be entitled to obtain advice of counsel (which advice shall be
at the expense of the Beneficiary) to determine whether any action required to
be taken pursuant to the Agreement results in the consequences described
11
in clauses (i), (ii) and (iii) of the preceding sentence. In the event that
said counsel advises the Owner Trustee that such action will result in such
consequences, the Owner Trustee may, or if instructed to do so by the
Beneficiary, shall, appoint an additional trustee pursuant to Section 8.04
hereby to proceed with such action.
Section 5.03 No Duties Except Under Specified Agreements or
Instructions.
(a) The Owner Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record,
insure, inspect, sell, dispose of, create, maintain or perfect any security
interest or title in or otherwise deal with any part of the Trust Estate,
prepare, file or record any document or report (including any tax related
filing for any holder of Notes), or to otherwise take or refrain from taking
any action under, or in connection with, this Agreement, the Trust or any
document contemplated hereby to which the Trust or the Owner Trustee is a
party, except as expressly provided by the terms of this Agreement or in
written instructions from the Beneficiary received pursuant to Section 5.01;
and no implied duties or obligations will be read into this Agreement against
the Owner Trustee. Unless otherwise directed by the Beneficiary in accordance
with Section 5.01(a), the Owner Trustee shall have no obligation or duty to
take any action the Trust is authorized and empowered to take pursuant to
Section 2.03(a). The Owner Trustee nevertheless agrees that it will, in its
individual capacity and at its own cost and expense, promptly take all action
as may be necessary to discharge any lien, pledge, security interest or other
encumbrance on any part of the Trust Estate which results from actions by or
claims against the Trustee Bank not related to the ownership of any part of
the Trust Estate.
(b) The Owner Trustee agrees that it will not manage, control,
use, lease, sell, dispose of or otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to, or the authority
conferred upon, the Owner Trustee pursuant to this Trust Agreement, or (ii) in
accordance with the express terms hereof or with written instructions from the
Beneficiary pursuant to Section 5.01. Unless otherwise directed by the
Beneficiary in accordance with Section 5.01(a), the Owner Trustee shall not be
required to perform any obligations or duties of the Trust under the
Indenture, which duties and obligations shall be the sole responsibility of
the Beneficiary.
Section 5.04 Trust Operation. The operations of the Trust will
be conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the Owner
Trustee or the Beneficiary;
(b) the Trust will not incur any indebtedness for money borrowed
or incur any obligations except in connection with the purposes set forth in
Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be maintained
separately from those of the Beneficiary and its affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liability distinct from those of the
Beneficiary, the Beneficiary's affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Trust and
not that of the Beneficiary or any of its affiliates, and will use its best
efforts to avoid the appearance (i) of conducting business on behalf of the
Beneficiary or any affiliates thereof, or (ii) that the assets of the Trust
are available to pay the creditors of the Beneficiary or any affiliates
thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiary or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiary or any affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such transaction is otherwise on terms
neither more favorable nor less favorable than the terms and conditions
available at the time to the Trust for comparable transactions with other
Persons; and
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(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding by the Owner Trustee that the Trust's
liabilities exceeds its assets or that the Trust is unable to pay its debts in
a timely manner as they become due.
Section 5.05 Execution of Documents. The Owner Trustee will, at
the written direction of the Beneficiary, execute and deliver on behalf of the
Trust such instruments, agreements and certificates contemplated hereby to
which the Trust is a party (such direction to be conclusively evidenced by the
Owner Trustee's execution and delivery of such documents to, and acceptance
by, the Beneficiary or its counsel).
Section 5.06 Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, each of the Owner Trustee and the
Beneficiary covenants and agrees that it shall not at any time with respect to
the Trust or the CARCO Receivables Trust acquiesce, petition or otherwise
invoke or cause the Trust or the CARCO Receivables Trust to invoke the process
of any court or government authority for the purpose of commencing or
sustaining a case against the Trust or the CARCO Receivables Trust under any
Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Trust or the CARCO Receivables Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust or the CARCO Receivables Trust; provided, however,
that this Section 5.06 shall not preclude any remedy described in Article VII
of the Indenture.
ARTICLE VI.
CONCERNING THE TRUSTEE BANK
Section 6.01 Acceptance of Trust and Duties. The Trustee Bank
accepts the trust hereby created and agrees to perform the same but only upon
the terms of this Agreement. The Trustee Bank also agrees to disburse all
moneys actually received by it constituting part of the Trust Estate in
accordance with the terms of this Agreement. The Trustee Bank will not be
answerable or accountable under any circumstances in its individual capacity,
except (i) for its own willful misconduct, bad faith or negligence, (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 6.07, (iii) for the failure by the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of subsection
5.03(a), or (iv) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or other compensation earned by the Trustee Bank for
acting as trustee hereunder. In particular, but not by way of limitation:
(a) The Trustee Bank will not be personally liable for any error
of judgment made in good faith by an authorized officer of the Owner Trustee
so long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) The Trustee Bank will not be personally liable with respect
to any action taken or omitted to be taken by the Owner Trustee in good faith
in accordance with the instructions of the Beneficiary;
(c) No provision of this Agreement or any Transaction Document
will require the Trustee Bank to expend or risk its personal funds or
otherwise incur any financial liability in the performance of any of its
rights or powers hereunder, if the Trustee Bank will 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, including such
advances as the Trustee Bank may reasonably request;
(d) Under no circumstance will the Trustee Bank be personally
liable for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of the
Trust;
(e) The Trustee Bank will not be personally responsible or
liable for or in respect of the validity or sufficiency of this Agreement or
for the due execution hereof by the Beneficiary or with respect to any
agreement entered into by the Trust;
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(f) Under no circumstances will the Trustee Bank be responsible
or liable for the action or inaction of the Beneficiary, nor will the Trustee
Bank be responsible for monitoring the performance of the Beneficiary's duties
hereunder or of any other Person acting for or on behalf of the Trust;
(g) In no event shall the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct or gross negligence, for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, for
the acts or omissions of brokers or dealers, and for any losses due to forces
beyond the control of the Trustee Bank, including strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services. The
Trustee Bank shall have no responsibility for the accuracy of any information
provided to the Beneficiary or any other Person that has been obtained from,
or provided to the Trustee Bank by, any other Person;
(h) the Trustee Bank shall not be liable for the default or
misconduct of the Indenture Trustee under any of the Transaction Documents or
otherwise, and the Trustee Bank shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the Transaction
Documents, in each case that are required to be performed by the Indenture
Trustee under the Indenture; and
(i) the Trustee Bank 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 Transaction Document, at the request, order
or direction of the Beneficiary, unless the Beneficiary has offered to the
Trustee Bank security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Trustee Bank therein or
thereby. The right of the Trustee Bank to perform any discretionary act
enumerated in this Agreement or in any Transaction Document shall not be
construed as a duty, and the Trustee Bank shall not be answerable for other
than its negligence or willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee will
furnish to the Beneficiary, within a reasonable time under the circumstances
after receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee with respect to the Trust or the Trust Estate.
Section 6.03 Representations and Warranties as to the Trust
Estate. The Owner Trustee makes no representation or warranty as to, and shall
not be liable for, the title, value, condition, design, operation,
merchantability or fitness for use of the Trust Estate (or any part thereof)
or any other representation or warranty, express or implied, whatsoever with
respect to the Trust Estate (or any part thereof) except that the Owner
Trustee, in its individual capacity, hereby represents and warrants to the
Beneficiary that it will comply with the last sentence of subsection 5.03(a).
Section 6.04 Signature of Returns. At the written direction of
the Beneficiary, the Owner Trustee will sign on behalf of the Trust any
Periodic Filings of the Trust or other documents relating to the Trust
prepared by, or on behalf of, the Beneficiary.
Section 6.05 Reliance; Advice of Counsel. The Owner Trustee will
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any entity 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 manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes rely on an officer's
certificate of the relevant party, as to such fact or matter, and such
officer's certificate will constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance
thereon. In the administration of the Trust, the Owner Trustee may, at the
expense of the Trust (i) execute the trust or any of the powers hereof and
perform its powers and duties hereunder directly or through agents or
attorneys, and the Owner Trustee will not be liable for the default or
misconduct of any agent or attorney selected by the Owner Trustee with
reasonable care; and (ii) consult with counsel, accountants and other skilled
persons to be selected with reasonable care and employed by it, and the Owner
Trustee will not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons.
14
Section 6.06 Not Acting in Individual Capacity. Except as
provided in this Article VI, in accepting the trust hereby created the Trustee
Bank acts solely as Owner Trustee hereunder and not in its individual
capacity; and all Persons having any claim against the Trust or the Owner
Trustee, whether by reason of the transactions contemplated by this Agreement
or otherwise, will look only to the Trust Estate (or a part thereof, as the
case may be) for payment or satisfaction thereof, except as specifically
provided in this Article VI.
Section 6.07 Representations and Warranties. The Trustee Bank,
other than a Trustee Bank appointed as a co-trustee, hereby represents and
warrants to the Beneficiary that:
(a) The Trustee Bank is a Delaware banking corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by the Trustee Bank with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on the Trustee Bank, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which the Trustee Bank is a party or by which any of the Trustee
Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware business trust.
ARTICLE VII.
TERMINATION OF TRUST AGREEMENT
Section 7.01 Termination of Trust Agreement.
(a) The Trust shall dissolve, upon the final distribution by the
Owner Trustee of all moneys or other property or proceeds of the Trust Estate
in accordance with the Delaware Business Trust Act and the terms of the
Indenture. Any money or other property held as part of the Trust Estate
following such distribution shall be distributed to the Beneficiary. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of the
Beneficiary shall not (x) operate to terminate this Agreement or the Trust, or
(y) entitle the Beneficiary'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 Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 7.01(a), neither the
Beneficiary nor the Beneficiary shall be entitled to revoke or terminate the
Trust.
(c) Upon the winding up of the Trust in accordance with the
Delaware Business Trust Act, 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
Delaware Business Trust Act and therefore the Trust and this Agreement (other
than Article XI) shall terminate.
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ARTICLE VIII.
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01 Resignation and Removal of the Owner Trustee;
Appointment of Successors. Upon the occurrence of a Disqualification Event
with respect to the Owner Trustee, the Beneficiary may appoint a successor
Owner Trustee by an instrument signed by the Beneficiary. If a successor Owner
Trustee has not been appointed within 30 days after the giving of written
notice of such resignation or the delivery of the written instrument with
respect to such removal, the Owner Trustee or the Beneficiary may apply to any
court of competent jurisdiction to appoint a successor Owner Trustee to act
until such time, if any, as a successor Owner Trustee has been appointed as
above provided. Any successor Owner Trustee so appointed by such court will
immediately and without further act be superseded by any successor Owner
Trustee appointed as above provided within one year from the date of the
appointment by such court. The Owner Trustee may resign at any time without
cause by giving at least 30 days' prior written notice to the Beneficiary. In
addition, the Beneficiary may at any time remove the Owner Trustee without
cause by an instrument in writing delivered to the Owner Trustee. No such
removal or resignation shall become effective until a successor Owner Trustee,
however appointed, becomes vested as Owner Trustee hereunder pursuant to
Section 8.02. The Beneficiary will notify the Note Rating Agencies promptly
after the resignation or removal of the Owner Trustee and promptly after the
appointment of a successor Owner Trustee.
Section 8.02 Transfer Procedures. Any successor Owner Trustee,
however appointed, will execute and deliver to the predecessor Owner Trustee
an instrument accepting such appointment, and such other documents of transfer
as may be necessary, and thereupon such successor Owner Trustee, without
further act, will become vested with all the estates, properties, rights,
powers, duties and trust of the predecessor Owner Trustee in the trust
hereunder with like effect as if originally named an Owner Trustee herein and
the predecessor Owner Trustee will be fully discharged of its duties and
obligations to serve as Owner Trustee hereunder. The predecessor Owner Trustee
shall promptly deliver to the successor Owner Trustee all documents,
statements and monies held by it under this Agreement. The successor Owner
Trustee shall promptly file an amendment to the Certificate of Trust with the
Secretary of State identifying the name and principal place of business of
such successor Owner Trustee in the State of Delaware.
Section 8.03 Qualification of Owner Trustee. Any Owner Trustee
will at all times (i) be a trust company or a banking corporation under the
laws of its state of incorporation or a national banking association, having
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on a trust business in the State of
Delaware, (ii) comply with Section 3807 (and any other applicable Section) of
the Delaware Business Trust Act, (iii) have a combined capital and surplus of
not less than $50,000,000 (or have its obligations and liabilities irrevocably
and unconditionally guaranteed by an affiliated Person having a combined
capital and surplus of at least $50,000,000) and (iv) have (or have a parent
which has) a rating of at least Baa3 by Moody's, at least BBB- by Standard &
Poor's or, if not rated, otherwise satisfactory to each Note Rating Agency.
Section 8.04 Co-trustees and Separate Owner Trustees. Whenever
the Owner Trustee or the Beneficiary shall deem it necessary or prudent in
order either to conform to any law of any jurisdiction in which all or any
part of the Trust Estate shall be situated or to make any claim or bring any
suit with respect to the Trust Estate, or whenever the Owner Trustee or the
Beneficiary shall be advised by counsel satisfactory to them that such action
is necessary or prudent, the Owner Trustee and the Beneficiary shall execute
and deliver an agreement supplemental hereto and all other instruments and
agreements, and shall take all other actions, necessary or proper to appoint
one or more Persons either as co-trustee or co-trustees jointly with the Owner
Trustee of all or any part of the Trust Estate, or as a separate trustee or
separate trustees of all or any part of the Trust Estate, and to vest in such
Persons, in such capacity, such title to the Trust Estate or any part thereof,
and such rights or duties, as may be necessary or desirable, all for such
period and under such terms and conditions as are satisfactory to the Owner
Trustee and the Beneficiary. In case a Disqualification Event shall occur with
respect to any such co-trustee or separate trustee, the title to the Trust
Estate and all rights and duties of such co-trustee or separate trustee shall,
so far as permitted by law, vest in and be exercised by the Owner Trustee,
without the appointment of a successor to such co-trustee or separate trustee.
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ARTICLE IX. AMENDMENTS
Section 9.01 Amendments.
(a) This Agreement may be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, without the consent of the Indenture
Trustee or any Noteholders, upon issuance of a CARCO Receivables Trust Tax
Opinion and an Issuer Tax Opinion (each as defined in the Indenture), which
shall not be expenses of the Owner Trustee or the Trustee Bank; provided,
however, that the Issuer shall deliver to the Indenture Trustee and the Owner
Trustee an Officer's Certificate (as defined in the Indenture) to the effect
that the Issuer reasonably believes that such amendment will not have an
Adverse Effect (as defined in the Indenture) and is not reasonably expected to
have an Adverse Effect at any time in the future.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, with the consent of the Indenture Trustee and not less than
66?% in Outstanding Dollar Principal Amount of the Outstanding Notes affected
by such amendment and upon issuance of a CARCO Receivables Trust Tax Opinion
and an Issuer Tax Opinion; provided, however, that, without the consent of the
Holders of all of the Notes then outstanding, no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments in respect of the Collateral Certificate or
distributions that are required to be made for the benefit of the Noteholders
or (b) reduce the aforesaid percentage of the Outstanding Amount (as defined
in the Indenture) of the Notes, the Holders of which are required to consent
to any such amendment.
(c) Promptly after the execution of any such amendment or
consent, the Issuer shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee and each Note Rating
Agency.
(d) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(f) The Owner Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officer's Certificate of the Issuer to the
effect that the conditions to such amendment have been satisfied. 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 X.
OWNERSHIP INTERESTS AND CERTIFICATES
Section 10.01 Issuance of Trust Certificates. (a) Promptly
following the execution and delivery of this Agreement, the Owner Trustee on
behalf of the Trust will issue and deliver to the Beneficiary a certificate of
beneficial ownership of the Trust Estate substantially in the form of Exhibit
A hereto (the "Trust Certificate") evidencing the Beneficiary's ownership
interest (the "Ownership Interest") in the Trust.
(b) The Trust Certificate will be executed by manual signature
on behalf of the Trust by an authorized officer of the Owner Trustee. A Trust
Certificate bearing the manual signature of an individual who was, at the time
when such signature was affixed, an authorized officer will bind the Trust,
notwithstanding that such individual has ceased to be so authorized prior to
the delivery of such Trust Certificate. The Trust Certificate will be dated
the date of its execution.
17
(c) The Beneficiary will be entitled to all rights provided to
it under this Agreement and in the Trust Certificate and will be subject to
the terms and conditions contained in this Agreement and in the Trust
Certificate.
(d) The Owner Trustee will maintain at its office referred to in
Section 2.07, or at the office of any agent appointed by it and approved in
writing by the Beneficiary, a register for the registration of the Trust
Certificate. Such register will show the name and address of the holder of the
Trust Certificate, and the Owner Trustee will treat such register as
definitive and binding for all purposes hereunder.
(e) When the Trust Certificate is duly executed and issued by
the Trust and duly authenticated by the Owner Trustee in accordance with this
Agreement, the Trust Certificate will be fully paid, validly issued,
non-assessable and entitled to the benefits of this Agreement.
Section 10.02 Beneficial Interest; Prohibitions on Transfer. (a)
The Ownership Interest will initially be beneficially owned by DCWR. Transfers
of the Ownership Interest and the Trust Certificate may be made between DCWR
and any other Person who is an Affiliate of DCWR (a "Permitted Affiliate
Transferee") upon delivery to the CARCO Receivables Trust Trustee and the
Owner Trustee of a CARCO Receivables Trust Tax Opinion and an Issuer Tax
Opinion, respectively, with respect to such transfer. The Beneficiary may not
sell, participate, transfer, assign, exchange or otherwise pledge or convey
all or any part of its right, title and interest in and to the Trust
Certificate or its Ownership Interest to any other Person, except (i) to any
Permitted Affiliate Transferee, or (ii) to the extent a corresponding transfer
of the Collateral Certificate would be permitted by the Pooling and Servicing
Agreement. Any purported transfer by the Beneficiary of all or any part of its
right, title and interest in and to the Trust Certificate or its Ownership
Interest to any Person will be effective only upon the issuance of a CARCO
Receivables Trust Tax Opinion and an Issuer Tax Opinion (each as defined in
the Indenture), which will not be an expense of the Owner Trustee or the
Trustee Bank. Any purported transfer by the Beneficiary of all or any part of
its right, title and interest in and to the Trust Certificate or its Ownership
Interest which is not in compliance with the terms of this Section 10.02 will
be null and void.
(b) The Trust Certificate will bear a legend setting forth the
restriction on the transferability of the Ownership Interest substantially as
follows:
"THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED
OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE
TERMS OF THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION,
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAWS AND MAY NOT BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER HEREOF
UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
AND APPLICABLE STATE SECURITIES LAWS."
(c) The Owner Trustee shall not be required to ascertain whether
any purported transfer of the Ownership Interest and the Trust Certificate
complies with the Securities Act or with the Pooling and Servicing Agreement.
Section 10.03 Lost or Destroyed Trust Certificate. If the Trust
Certificate shall become mutilated, destroyed, lost or stolen, the Owner
Trustee on behalf of the Trust will, upon the written request of the
Beneficiary, and compliance with all applicable terms of this paragraph,
execute and deliver to such holder in replacement thereof a new Trust
Certificate dated the same date as on the Trust Certificate so mutilated,
destroyed, lost or stolen. If the Trust Certificate being replaced has been
mutilated, destroyed, lost or stolen, the Beneficiary will furnish to the
Owner Trustee such security or indemnity as may be required by the Owner
Trustee to save the Owner Trustee harmless from any damage, loss or liability
in connection with such Trust Certificate, and the Owner Trustee may
18
require from the Beneficiary payment of a sum to reimburse the Owner Trustee
for, or to provide funds for, the payment of any costs, fees and expenses and
any tax or other governmental charge in connection therewith and any charges
paid or payable by the Owner Trustee.
ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses. The Transferor
will pay to the Trustee Bank all fees and other charges described in a
separate fee agreement dated as of the date hereof between the Trust and the
Trustee Bank promptly when due thereunder and reimburse the Trustee Bank for
all other reasonable out-of-pocket costs and expenses (including reasonable
fees and expenses of counsel) incurred by it in connection with its acting as
Owner Trustee of the Trust.
Section 11.02 Indemnification. To the fullest extent permitted
by law, the Transferor hereby agrees, whether or not any of the transactions
contemplated by this Agreement will be consummated, to assume liability for,
and hereby indemnifies, protects, saves and keeps harmless the Trustee Bank
and its officers, directors, successors, assigns, legal representatives,
agents and servants (each an "Indemnified Person"), from and against any and
all liabilities, obligations, losses, damages, penalties, taxes, claims,
actions, investigations, proceedings, costs, expenses or disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted at any time
against an Indemnified Person (whether or not also indemnified against by any
other person) in any way relating to or arising out of this Agreement or any
other related documents or the enforcement of any of the terms of any thereof,
the administration of the Trust Estate or the action or inaction of the Owner
Trustee, or the Trustee Bank under this Agreement, and the manufacture,
purchase, acceptance, nonacceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of
any property (including any strict liability, any liability without fault and
any latent and other defects, whether or not discoverable), except, in any
such case, to the extent that any such liabilities, obligations, losses,
damages, penalties, taxes, claims, actions, investigations, proceedings,
costs, expenses and disbursements are the result of any of the matters
described in the third sentence of Section 6.01; provided, however, that the
Transferor shall not be liable for or required to indemnify an Indemnified
Person from and against expenses arising or resulting from (i) the Indemnified
Party's own willful misconduct, bad faith or negligence, or (ii) the
inaccuracy of any representation or warranty contained in Section 6.07 made by
the Indemnified Person.
In case any such action, investigation or proceeding will be
brought involving an Indemnified Person, the Transferor will assume the
defense thereof, including the employment of counsel and the payment of all
expenses. The Trustee Bank will have the right to employ separate counsel in
any such action, investigation or proceeding and to participate in the defense
thereof and the reasonable counsel fees and expenses of such counsel will be
paid by the Transferor. In the event of any claim, action or proceeding for
which indemnity will be sought pursuant to this Section, the Trustee Bank's
choice of legal counsel shall be subject to the approval of the Beneficiary,
which approval shall not be unreasonably withheld.
The indemnification set forth herein will survive the
termination of this Agreement and the resignation or removal of the Trustee
Bank.
ARTICLE XII. MISCELLANEOUS
Section 12.01 Conveyance by the Owner Trustee is Binding. Any
sale or other conveyance of any part of the Trust Estate by the Owner Trustee
made pursuant to the terms of this Agreement will bind the Beneficiary and
will be effective to transfer or convey all beneficial interest of the Owner
Trustee and Beneficiary in and to such part of the Trust Estate, as the case
may be. No purchaser or other grantee will be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance
or as to the application of any sale or other proceeds with respect thereto by
the Owner Trustee or the officers.
Section 12.02 Instructions; Notices. All instructions, notices,
requests or other communications ("Deliveries") desired or required to be
given under this Agreement will be in writing and will be sent by (a)
certified or registered mail, return receipt requested, postage prepaid, (b)
national prepaid overnight delivery service,
19
(c) telecopy or other facsimile transmission or (d) personal delivery, with
receipt acknowledged in writing, to the following addresses:
(i) if to DCWR:
DaimlerChrysler Wholesale Receivables LLC
27777 Franklin Road
Southfield, MI 48034
Attention: [____________]
Facsimile: (248) ___-____
(ii) if to the Owner Trustee:
[---------------------]
[Address]
Attention:
Facsimile:
All Deliveries will be deemed given when actually received or
refused by the party to whom the same is directed (except to the extent sent
by certified or registered mail, return receipt requested, postage prepaid, in
which event such Deliveries will be deemed given three days after the date of
mailing and except to the extent sent by telecopy or other facsimile
transmission, in which event such Deliveries will be deemed given when answer
back is received). Either party may designate a change of address or
supplemental address by notice to the other party, given at least 15 days
before such change of address is to become effective.
Section 12.03 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction will not invalidate
or render unenforceable any provision hereof in any other jurisdiction.
Section 12.04 Limitation of Liability. (a) Neither the
Beneficiary nor any officer, director, employee, agent, partner, shareholder,
trustee or principal of the Beneficiary, the Trust or any Person owning,
directly or indirectly, any legal or beneficial interest in the Beneficiary,
will have any liability or obligation with respect to the Trust or the
performance of this Agreement or any other agreement, document or instrument
executed by the Trust, and the creditors of the Trust and all other Persons
will look solely to the Trust Estate for the satisfaction of any claims with
respect thereto. The foregoing limitation of liability is subject to Section
12.06 and is in addition to, and not exclusive of, any limitation of liability
applicable to the Persons referred to above by operation of law.
(b) All agreements entered into by the Trust under which the
Trust would have any material liability will contain an exculpatory provision
substantially to the following effect:
Neither any trustee nor any beneficiary of DaimlerChrysler
Master Owner Trust nor any of their respective officers,
directors, employers or agents will have any liability with
respect to this agreement, and recourse may be had solely to
the assets of DaimlerChrysler Master Owner Trust with respect
thereto.
Section 12.05 Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered will be an original, but all such counterparts will
together constitute but one and the same instrument.
Section 12.06 Successors and Assigns. All covenants and
agreements contained herein will be binding upon, and inure to the benefit of,
the Owner Trustee and its successors and assigns and the Beneficiary and their
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Beneficiary
will bind the successors and assigns of the Beneficiary.
20
Section 12.07 Headings. The headings of the various Sections
herein are for convenience of reference only and will not limit any of the
terms or provisions herein.
Section 12.08 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 12.09 No Recourse. The holder of the Trust Certificate
by accepting the Trust Certificate acknowledges that the Trust Certificate
does not represent an interest in or obligation of the Beneficiary, the Owner
Trustee (in its individual capacity), the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture.
Section 12.10 Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE TRUST CERTIFICATE BY THE BENEFICIARY, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF THIS
AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND
PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND THE BENEFICIARY.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be duly executed, by their respective officers hereunto duly
authorized all as of the day and year first above written.
[_____________________], as Owner Trustee
By:______________________________
Name:
Title:
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC, by
CHRYSLER FINANCIAL RECEIVABLES CORPORATION, a
member, as Beneficiary and as Transferor
By:________________________________
Name:
Title:
[Signature Page to DaimlerChrysler Master Owner Trust Trust
Agreement]
21
EXHIBIT A
[FORM OF TRUST CERTIFICATE]
THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE
PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT
REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL INTEREST IN THE TRUST
REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT, THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED AND APPLICABLE STATE SECURITIES LAWS.
DAIMLERCHRYSLER MASTER OWNER TRUST
TRUST CERTIFICATE
(This Certificate does not represent an interest in or obligation of
DaimlerChrysler Wholesale Receivables LLC or any of its affiliates, except to
the extent described below.)
THIS CERTIFIES THAT DaimlerChrysler Wholesale Receivables LLC is
the registered owner of the DaimlerChrysler Master Owner Trust (the "Trust")
created by DaimlerChrysler Wholesale Receivables LLC, a Delaware limited
liability company ("DCWR").
The Trust was created pursuant to (i) the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware and
(ii) the Trust Agreement dated as of _______ __, 2002 (the "Trust Agreement"),
between DCWR, as Beneficiary and as Transferor, and [_____________________],
as owner trustee (the "Owner Trustee"). To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in the Trust Agreement including, as specified in subsection 1.01(a).
This Certificate is the duly authorized Certificate evidencing a
beneficial interest in the Trust (herein called the "Certificate"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Owner by
virtue of the acceptance hereof assents and by which the Owner is bound.
Notwithstanding any prior termination of the Trust Agreement, the
Owner, by its acceptance of this Certificate, covenants and agrees that, to
the fullest extent permitted by applicable law, it shall not at any time with
respect to the Trust, the Beneficiary or the CARCO Receivables Trust,
acquiesce, petition or otherwise invoke or cause the Trust, the Beneficiary or
the CARCO Receivables Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Trust, the Beneficiary or the CARCO Receivables Trust under any Federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust, the Beneficiary or the CARCO Receivables Trust
or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust, the Beneficiary or the CARCO
Receivables Trust.
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 any Transaction Document or be valid for any purpose.
THIS CERTIFICATE AND THE TRUST AGREEMENT WILL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO ANY CONFLICT-OF-LAW PROVISIONS AND THE
OBLIGATIONS,
A-1
RIGHTS, AND REMEDIES OF THE OWNER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity pursuant to the Trust Agreement, has caused
this Certificate to be issued by the Trust as of the date hereof.
DAIMLERCHRYSLER MASTER OWNER TRUST
By: [_____________________], not in its individual
capacity but solely as Owner Trustee
By:_________________________________
Name:
Title:
Date: _________ __, 2002
A-2
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
[_____________________], or [_____________________],
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By:____________________________
Authenticating Agent
By:_____________________________ By:____________________________
Authorized Signatory Authorized Signatory
A-3
ANNEX I to EXHIBIT A
Registered Owner and address:
DaimlerChrysler Wholesale Receivables LLC
27777 Franklin Road
Southfield, Michigan 48034
Tax Identification Number:
[-----------------]
EXHIBIT B
CERTIFICATE OF TRUST OF
DAIMLERCHRYSLER MASTER OWNER TRUST
THIS Certificate of Trust of DaimlerChrysler Master Owner Trust
(the "Trust") has been duly executed and is being filed by
[_____________________], a Delaware banking corporation, as trustee, to create
a business trust under the Delaware Business Trust Act (12 Del. C., ss. 3801
et seq.).
1 Name. The name of the business trust created hereby is
DaimlerChrysler Master Owner Trust.
2 Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are [_____________________],
[______________________], Attention: [_____________________].
3 Effective Date. This Certificate of Trust shall be
effective on _______ __, 2002.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate
of Trust in accordance with Section 3811(a) of the Delaware Business Trust
Act.
[---------------------],
not in its individual capacity
but solely as Owner Trustee
By: ____________________________________
Name:
Title:
B-1