Exhibit 4.5
(includes Exhibit 3.3)
EXECUTION COPY
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DAIMLERCHRYSLER MASTER OWNER TRUST
TRUST AGREEMENT
dated as of June 1, 2002
between
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Beneficiary and as Transferor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
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...........................3
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.........................................................7
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.........................................10
ARTICLE IV.
DISTRIBUTIONS OF FUNDS
Section 4.01 Distribution of Funds.....................................................................11
Section 4.02 Payments from Trust Estate Only...........................................................11
Section 4.03 Method of Payment.........................................................................11
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................................................12
Section 5.03 No Duties Except Under Specified Agreements or Instructions...............................12
Section 5.04 Trust Operation...........................................................................13
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............................................................14
Section 6.02 Furnishing of Documents...................................................................15
Section 6.03 Representations and Warranties as to the Trust Estate.....................................15
Section 6.04 Signature of Periodic Filings.............................................................15
Section 6.05 Reliance; Advice of Counsel...............................................................15
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............................................................16
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............................................................17
Section 8.04 Co-trustees and Separate Owner Trustees...................................................17
ARTICLE IX.
AMENDMENTS
Section 9.01 Amendments................................................................................17
ARTICLE X.
OWNERSHIP INTEREST
Section 10.01 Ownership Interest; Prohibitions on Transfer.............................................18
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ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses...........................................................19
Section 11.02 Indemnification..........................................................................19
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.................................................................................20
Section 12.08 Governing Law............................................................................21
Section 12.09 No Recourse..............................................................................21
Section 12.10 Acceptance of Terms of Agreement.........................................................21
EXHIBIT A CERTIFICATE OF TRUST OF DAIMLERCHRYSLER
MASTER OWNER TRUST....................................................................A-1
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TRUST AGREEMENT dated as of June 1, 2002, between DAIMLERCHRYSLER
WHOLESALE RECEIVABLES LLC, a Delaware limited liability company ("DCWR"), as
Beneficiary and as Transferor, and CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association, 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, the Pooling and Servicing Agreement or the Indenture. 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 or other permitted 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" means the Certificate of Trust substantially
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. 3801, et seq., as amended from time to time, and any successor
statute thereto.
"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 dated as of June 1, 2002 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 The Bank of New York, 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 Chase Manhattan Bank USA, National
Association, a national banking association, 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 of the Beneficiary
in the Trust hereunder, together with the rights and privileges set forth in
Section 10.01, which shall constitute the sole beneficial interest in the
Trust within the meaning of the Delaware Business Trust Act.
"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 Governmental Authority.
"Permitted Affiliate Transferee" is defined in Section 10.01.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement, dated as of December 5, 2001, among DCWR,
DaimlerChrysler Services North America LLC, 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.
"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.
"Series 2002-CC Supplement" means the Series 2002-CC Supplement 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.
"Transaction Documents" mean the Indenture, any Indenture Supplement
thereto, the Certificate of Trust, the Administration Agreement and other
documents delivered in connection herewith and therewith.
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"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 Estate" is defined in Section 2.05.
"Trustee Bank" means Chase Manhattan Bank USA, National Association
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
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
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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, 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, 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
(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;
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(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 or any special purpose vehicle established by DCWR;
(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 remaining
outstanding investor certificate issued by the CARCO Receivables Trust,
then at the written direction of the Beneficiary dissolve the CARCO
Receivables Trust and terminate the Pooling and Servicing Agreement,
acquire the Receivables directly and enter into a sale and servicing
agreement and other documents that contain, to the extent applicable, the
sale and servicing provisions of the Pooling and Servicing Agreement and
other documents and amend any documents to reflect the direct ownership
of the Receivables and the provisions of the Pooling and Servicing
Agreement and other documents.
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, each document
related to each such document, and each other Transaction Document to
which it is to be a party and each related document;
(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, shall not have a
notional amount at the time of issuance in excess of the principal amount of
such Notes and shall not thereafter be 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 Permitted 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 Chase Manhattan Bank USA, National Association as Owner Trustee of
the Trust effective as of the date hereof.
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, subject to Section
2.03(a)(ii), 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.
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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 absolutely transfer, assign, set over 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 all of the Transferor's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Collateral Certificate and 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 Trust,
and to deliver a file- stamped copy of such financing statements or other
evidence of such filings to the Trust 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 Indenture Trustee (as pledgee of 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 Trust is deemed to have relied
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in acquiring the Collateral Certificate. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of the date of
initial issuance of each series of Notes, but shall survive the transfer and
assignment of the Collateral Certificate to the Trust 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 Trust 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 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 Trust 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 Trust 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 Trust 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 Trust pursuant to the terms of this
Agreement, (ii) the pledge of the Collateral Certificate by the Trust 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 Trust
shall cooperate with the Transferor, if applicable, to perfect, and maintain
perfection of, the interests of the Trust 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 Trust 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
8
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 Trust and the Indenture Trustee are 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 to 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.
(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 Trust to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest
of the Trust 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 Trust'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 2.18 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 Trust 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.
9
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 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 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 limited liability company
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.
10
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 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 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, as a matter of
administrative convenience, by the Indenture Trustee in accordance with the
Indenture and the Indenture Supplements 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 Indenture Trustee.
Section 4.04 Establishment of Account. The Beneficiary hereby
authorizes the Owner Trustee to establish with JPMorgan Chase Bank (or if the
Owner Trustee is not Chase Manhattan Bank USA, National Association, such
other bank as the Owner Trustee shall select) and maintain on behalf of the
Trust an account 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 has 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 from the Beneficiary
additional indemnification or security satisfactory to the Trustee Bank
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 that is not authorized or permitted by this
Agreement or is 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
11
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.
(f) The Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Transaction Documents to the
extent the Administrator has agreed in the Administration Agreement to perform
any act or to discharge any duty of the Owner Trustee hereunder or under and
Transaction Document, and the Owner Trustee shall not be held liable for the
default or failure of the Administrator to carry out its obligations under the
Administration Agreement.
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 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
12
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 liabilities 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
(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 or is to be a party. Absent such written direction, the
Owner Trustee shall have no duty or obligation to execute or deliver any
instruments, agreements or certificates on behalf of the Trust, all of which
shall be executed and delivered by the Beneficiary on behalf of the Trust
(other than those executed and delivered pursuant to the first sentence of
this Section 5.05).
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.
13
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. If, notwithstanding Section 4.03, the Trustee
Bank receives moneys constituting part of the Trust Estate, the Trustee Bank
agrees to disburse all such moneys 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 of the Trust, 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;
(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
14
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
that are not, pursuant to this Agreement, any Transaction Document or
otherwise, required to be forwarded directly to the Beneficiary.
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).
Section 6.04 Signature of Periodic Filings. The Beneficiary, as
attorney-in-fact for 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.
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 national banking association duly
organized and validly existing in good standing under the laws of the United
States. 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.
15
(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
Indenture Trustee or 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), the Beneficiary shall
not 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, at the written direction of the
Beneficiary, 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 thereupon
the Trust and this Agreement (other than Article XI) shall terminate.
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
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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 trusts 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.
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 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 Trust shall
deliver to the Indenture Trustee and the Owner Trustee an Officer's
Certificate (as defined in the Indenture) to the effect that the Trust
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 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
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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 Trust 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) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel of the Trust
to the effect that such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
ARTICLE X.
OWNERSHIP INTEREST
Section 10.01 Ownership Interest; Prohibitions on Transfer. (a) The
Ownership Interest will initially be beneficially owned by DCWR. Transfers of
the Ownership Interest 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 Trust Tax
Opinion and an Issuer Tax Opinion, respectively, with respect to such
transfer. The Beneficiary shall not sell, participate, transfer, assign,
exchange or otherwise pledge or convey all or any part of its right, title and
interest in and to its Ownership Interest to any other Person, except to any
Permitted Affiliate Transferee. Any purported transfer by the Beneficiary of
all or any part of its right, title and interest in and to its Ownership
Interest to any Permitted Affiliate Transferee will be effective only upon the
issuance of a CARCO Trust Tax Opinion and an Issuer Tax Opinion, 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 its Ownership Interest which is not in compliance with the
terms of this Section 10.01 will be null and void.
(b) As part of the Ownership Interest, the Beneficiary will be
entitled to all rights provided to it under this Agreement and will be subject
to the terms and conditions contained in this Agreement.
(c) The Ownership Interest will not be represented by a certificate
or other instrument. The Owner Trustee will maintain at its office referred to
in Section 2.07, or at the corporate trust office of JPMorgan Chase Bank or
any other agent appointed by it and approved in writing by the Beneficiary, a
register for the registration of the Ownership Interest. Such register will
show the name and address of the holder of the Ownership Interest, and the
Owner Trustee will treat such register as definitive and binding for all
purposes hereunder. A registration of a transfer of the Ownership Interest
shall only be made upon satisfaction of the conditions in Section 10.01(a) and
delivery to the Owner Trustee of a copy of the proposed assignment
documentation and a certification from the Beneficiary that such conditions
have been satisfied.
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ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses. The Trustee Bank will
receive all fees and other charges described in a separate fee agreement
between DaimlerChrysler Services North America LLC and the Trustee Bank
promptly when due thereunder and the Trustee Bank will be reimbursed 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 exception in the third sentence of Section 6.01.
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, (c) telecopy or other facsimile
transmission or (d) personal delivery, with receipt acknowledged in writing,
to the following addresses:
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(i) if to DCWR:
DaimlerChrysler Wholesale Receivables LLC
27777 Franklin Road
Southfield, MI 48034
Attention: Assistant Secretary
Facsimile: (248) 512-1771
(ii) if to the Owner Trustee:
Chase Manhattan Bank USA, National Association
c/o JPMorgan Chase Bank
500 Stanton Christiana Road, Fl. 3/OPS4
Newark, Delaware 19713
Attention: Corporate Trustee Department
Facsimile: (302) 984-4903
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.
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.
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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 Ownership Interest
acknowledges that the Ownership Interest 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 OWNERSHIP INTEREST 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.
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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.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Owner Trustee
By: /s/ Denis Kelly
----------------------------
Name: Denis Kelly
Title: Assistant Vice President
DAIMLERCHRYSLER WHOLESALE RECEIVABLES
LLC, by CHRYSLER FINANCIAL RECEIVABLES
CORPORATION, a member, as Beneficiary and as
Transferor
By: /s/ R. Menzies
----------------------------
Name: R. Menzies
Title: Assistant Controller
EXHIBIT A
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 Chase Manhattan Bank
USA, National Association, a national banking association, as trustee, to
create a business trust under the Delaware Business Trust Act (12 Del. C., (s)
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 Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, Fl. 3/OPS4,
Newark, Delaware 19713, Attention: Corporate Trust Department.
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.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Name:
Title:
A-1