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Exhibit 4.1
AMENDED AND RESTATED
TRUST AGREEMENT
between
DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION,
as Depositor,
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of November 1, 1998
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................. 1
SECTION 1.1. Capitalized Terms................................................. 1
SECTION 1.2. Other Definitional Provisions..................................... 7
ARTICLE II ORGANIZATION OF THE TRUST................................................... 9
SECTION 2.1. Name.............................................................. 9
SECTION 2.2. Office............................................................ 9
SECTION 2.3. Purposes and Powers............................................... 9
SECTION 2.4. Appointment of Owner Trustee...................................... 10
SECTION 2.5. Initial Capital Contribution of Owner Trust Estate................ 10
SECTION 2.6. Declaration of Trust.............................................. 10
SECTION 2.7. Title to Trust Property........................................... 11
SECTION 2.8. Situs of Trust.................................................... 11
SECTION 2.9. Representations and Warranties of the Depositor................... 11
SECTION 2.10. Federal Income Tax Matters....................................... 12
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS................................ 14
SECTION 3.1. Initial Ownership................................................. 14
SECTION 3.2. The Certificates.................................................. 14
SECTION 3.3. Authentication of Certificates.................................... 15
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates............................................ 15
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates................. 22
SECTION 3.6. Persons Deemed Owners of Certificate.............................. 22
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses............................................... 23
SECTION 3.8. Maintenance of Office or Agency................................... 23
SECTION 3.9. Appointment of Paying Agent....................................... 23
ARTICLE IV ACTIONS BY OWNER TRUSTEE.................................................... 25
SECTION 4.1. Prior Notice to Certificateholders with Respect to
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Page
Certain Matters......................................... 25
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters................................................. 26
SECTION 4.3. Restrictions on Certificateholders' Power.......................... 26
SECTION 4.4. Majority Control.................................................. 26
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.................................. 28
SECTION 5.1. Establishment of Certificate Distribution Account................. 28
SECTION 5.2. Application of Trust Funds........................................ 28
SECTION 5.3. Method of Payment................................................. 29
SECTION 5.4. No Segregation of Monies; No Interest............................. 30
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service
and Others.............................................. 30
SECTION 5.6. Signature on Returns; Tax Matters Partner......................... 31
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE....................................... 32
SECTION 6.1. General Authority................................................. 32
SECTION 6.2. General Duties.................................................... 32
SECTION 6.3. Action upon Instruction........................................... 32
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions............................................ 34
SECTION 6.5. No Action Except Under Specified Documents or
Instructions............................................ 34
SECTION 6.6. Restrictions...................................................... 34
ARTICLE VII REGARDING THE OWNER TRUSTEE................................................. 35
SECTION 7.1. Acceptance of Trusts and Duties................................... 35
SECTION 7.2. Furnishing of Documents........................................... 36
SECTION 7.3. Representations and Warranties.................................... 36
SECTION 7.4. Reliance; Advice of Counsel....................................... 37
SECTION 7.5. Not Acting in Individual Capacity................................. 38
SECTION 7.6. Owner Trustee Not Liable for Certificates or
Receivables............................................. 38
SECTION 7.7. Owner Trustee May Own Certificates and Notes...................... 38
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Page
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................... 40
SECTION 8.1. Owner Trustee's Fees and Expenses................................. 40
SECTION 8.2. Indemnification................................................... 40
SECTION 8.3. Payments to Indemnified Parties................................... 40
ARTICLE IX TERMINATION................................................................. 41
SECTION 9.1. Termination of Trust Agreement.................................... 41
SECTION 9.2. Bankruptcy of the Depositor....................................... 42
SECTION 9.3. Prepayment of the Certificates.................................... 42
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...................... 44
SECTION 10.1. Eligibility Requirements for Owner Trustee....................... 44
SECTION 10.2. Resignation or Removal of Owner Trustee.......................... 44
SECTION 10.3. Successor Owner Trustee.......................................... 45
SECTION 10.4. Merger or Consolidation of Owner Trustee......................... 46
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.................... 46
ARTICLE XI MISCELLANEOUS............................................................... 48
SECTION 11.1. Supplements and Amendments....................................... 48
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders...................................... 49
SECTION 11.3. Limitation on Rights of Others................................... 50
SECTION 11.4. Notices.......................................................... 50
SECTION 11.5. Severability..................................................... 50
SECTION 11.6. Separate Counterparts............................................ 51
SECTION 11.7. Successors and Assigns........................................... 51
SECTION 11.8. Covenant of the Depositor........................................ 51
SECTION 11.9. No Petition...................................................... 51
SECTION 11.10. No Recourse..................................................... 51
SECTION 11.11. Headings........................................................ 51
SECTION 11.12. Governing Law................................................... 52
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EXHIBITS
EXHIBIT A Form of Certificate
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Rule 144A Transferor
Certificate
EXHIBIT D Form of Investment Letter --
Qualified Institutional Buyer
EXHIBIT E Form of Investment Letter --
Institutional Accredited Investor
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 1, 1998 (as
the same may be further amended, supplemented or otherwise modified and in
effect from time to time, this "Agreement"), between DAIMLER-BENZ VEHICLE
RECEIVABLES CORPORATION, a Delaware corporation, as depositor (the "Depositor"),
having its principal executive office at 1201 North Market Street, Suite 1406,
Wilmington, Delaware 19801; and CHASE MANHATTAN BANK DELAWARE, a Delaware
banking corporation, as trustee under this agreement (in such capacity, together
with any successor or permitted assign, the "Owner Trustee"), having its
principal corporate trust office at 1201 North Market Street, Wilmington,
Delaware 19801.
WHEREAS, the parties hereto are parties to the Trust Agreement, dated
as of November 1, 1998 (the "Original Trust Agreement"), and now wish to amend
and restate the Original Trust Agreement on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Depositor and the Owner
Trustee hereby agree that the Original Trust Agreement is hereby amended and
restated as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Accountants" shall have the meaning assigned to such term in Section
5.5(b).
"Accrued Certificate Interest" shall mean, with respect to any Payment
Date, the sum of Monthly Accrued Certificate Interest and the Certificate
Interest Carryover Shortfall for such Payment Date.
"Administration Agreement" shall have the meaning assigned to such term
in the Indenture.
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"Administrator" shall have the meaning assigned to such term in the
Indenture.
"Affiliate" shall have the meaning assigned to such term in the Sale
and Servicing Agreement.
"Agreement" shall have the meaning specified in the recitals hereto.
"Applicable Tax State" shall have the meaning assigned to such term in
the Sale and Servicing Agreement.
"Available Funds" shall have the meaning assigned to such term in the
Sale and Servicing Agreement.
"Basic Documents" shall have the meaning assigned to such term in the
Indenture.
"Business Day" shall have the meaning assigned to such term in the Sale
and Servicing Agreement.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
"Certificate" or "Class B Certificate" shall mean a physical
certificate evidencing the beneficial interest of a Certificateholder in the
property of the Trust, substantially in the form of Exhibit A attached hereto.
Such certificate shall entitle the Holder thereof to distributions pursuant to
this Agreement from collections and other proceeds in respect of the Owner Trust
Estate on the terms and subject to the conditions set forth herein; provided,
however, that certain of the Trust Property has been pledged to the Indenture
Trustee to secure payment of the Notes and that the rights of Certificateholders
to receive distributions on the Certificates are subordinated to the rights of
the Noteholders as described in the Sale and Servicing Agreement and the
Indenture.
"Certificate Balance" shall mean, as the context requires, (a) with
respect to all of the Certificates, an amount equal to, initially, the Initial
Certificate Balance and, thereafter, the Initial Certificate Balance minus any
and all amounts allocable to principal previously distributed to
Certificateholders, and (b) with
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respect to any Certificate, an amount equal to, initially, the initial
denomination of such Certificate and, thereafter, an amount equal to such
initial denomination minus any and all amounts allocable to principal previously
distributed in respect of such Certificate.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificateholder" shall mean a Holder of a Certificate.
"Certificate Interest Carryover Shortfall" shall mean, with respect to
any Payment Date, the excess of the sum of (a) the Monthly Accrued Certificate
Interest for the preceding Payment Date and any outstanding Certificate Interest
Carryover Shortfall from the close of business on such preceding Payment Date,
over (b) the amount in respect of interest that is actually deposited into the
Certificate Distribution Account on such preceding Payment Date, plus interest
on such excess to the extent permitted by law, at the Class B Rate for the
related Certificate Interest Period.
"Certificate Interest Period" shall mean, with respect to any Payment
Date, the period from and including the Closing Date (in the case of the first
Payment Date) or from and including the twentieth (20th) day of the calendar
month preceding each Payment Date to but excluding the twentieth (20th) day of
the following calendar month.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B attached hereto filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Class B Final Payment Date" shall mean the May 2006 Payment Date.
"Class B Rate" shall mean 5.62% per annum.
"Class B Reserve Account" shall have the meaning assigned to such term
in Section 5.1.
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"Closing Date" shall have the meaning assigned to such term in the
Indenture.
"Code" shall have the meaning assigned to such term in the Indenture.
"Commission" shall have the meaning assigned to such term in the
Indenture.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at 1201 North
Market Street, Wilmington, Delaware 19801; or at such other address as the Owner
Trustee may designate by notice to the Certificateholders and the Depositor, or
the principal corporate trust office of any successor Owner Trustee (as to which
address the successor Owner Trustee will notify the Certificateholders and the
Company).
"Depositor" shall mean Daimler-Benz Vehicle Receivables Corporation, a
Delaware corporation, and its successors and assigns.
"Determination Date" shall have the meaning assigned to such term in
the Sale and Servicing Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" shall have the meaning assigned to such term in the
Indenture.
"Expenses" shall have the meaning assigned to such term in Section 8.2.
"Financed Vehicle" shall have the meaning assigned to such term in the
Sale and Servicing Agreement.
"Grant" shall have the meaning assigned to such term in the Indenture.
"Holder" shall mean, with respect to any Certificate, a Person in whose
name a Certificate is registered in the Certificate Register.
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"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Indenture" shall mean the Indenture, dated as of November 1, 1998, by
and between the Issuer and Citibank, N.A., a national banking association, as
the Indenture Trustee, as the same may be amended, supplemented or otherwise
modified and in effect from time to time.
"Indenture Trustee" shall have the meaning assigned to such term in the
Indenture.
"Initial Certificate Balance" shall mean, as the context requires, (a)
with respect to all of the Certificates, $81,654,551.40, or (b) with respect to
any Certificate, an amount equal to the initial denomination thereof.
"Insolvency Event" shall have the meaning assigned to such term in
Section 10.2.
"Issuer" shall have the meaning assigned to such term in the Indenture.
"MBCC" shall mean Mercedes-Benz Credit Corporation, a Delaware
corporation, and its successors and assigns.
"Monthly Accrued Certificate Interest" shall mean, with respect to any
Payment Date, interest accrued for the related Certificate Interest Period at
the Class B Rate on the Certificate Balance as of the immediately preceding
Payment Date, after giving effect to all payments of principal to
Certificateholders on or prior to such preceding Payment Date (or, in the case
of the first Payment Date, the Initial Certificate Balance).
"Note" shall have the meaning assigned to such term in the Indenture.
"Opinion of Counsel" shall have the meaning assigned to such term in
the Sale and Servicing Agreement.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the Trust Property transferred and assigned to the Trust
pursuant to Article II of the Sale and Servicing Agreement.
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"Owner Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware
banking corporation, not in its individual capacity but solely as Owner Trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean, with respect to any amounts held on behalf
of or paid to any Certificateholders, any paying agent or co-paying agent
appointed pursuant to Section 3.9 and shall initially be Citibank, N.A.
"Payment Date" shall have the meaning assigned to such term in the Sale
and Servicing Agreement.
"Person" shall have the meaning assigned to such term in the Sale and
Servicing Agreement.
"Prepayment Date" shall mean, as of any date of determination, the
Payment Date specified by the Servicer pursuant to Section 9.3(a).
"Prepayment Price" means an amount equal to the Certificate Balance,
plus any Accrued Certificate Interest.
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Rating Agency" shall have the meaning assigned to such term in the
Sale and Servicing Agreement.
"Record Date" shall mean, with respect to the Certificates and any
Payment Date, the close of business on the last Business Day of the calendar
month preceding such Payment Date.
"Rule 144A" shall have the meaning assigned to such term in Section
3.4(e).
"Rule 144A Information" shall have the meaning assigned to such term in
Section 3.4(f).
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of November 1, 1998, by and among the Issuer, the Seller and
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MBCC, as the Servicer, as the same may be amended, supplemented or otherwise
modified and in effect from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall have the meaning assigned to such term in the
Indenture.
"Seller" shall have the meaning assigned to such term in the Sale and
Servicing Agreement.
"Servicer" shall have the meaning assigned to such term in the Sale and
Servicing Agreement.
"Servicer's Certificate" shall have the meaning assigned thereto in the
Sale and Servicing Agreement.
"Transfer" shall have the meaning assigned to such term in Section 3.2.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust and Owner Trust Estate established by this
Agreement.
"Trust Property" shall have the meaning assigned to such term in the
Sale and Servicing Agreement.
"Void Transfer" shall have the meaning assigned to such term in Section
3.2.
SECTION 1.2. Other Definitional Provisions.
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(a) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement or, if not defined
therein, in the Indenture.
(b) All terms in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other documents
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder", and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust shall be known as "Daimler-Benz Vehicle
Owner Trust 1998-A", in which name the Owner Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is, and
the Trust shall have the power and authority, to engage solely in the following
activities:
(i) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes and the
Certificates upon the written order of the Depositor;
(ii) with the proceeds of the sale of the Notes, to fund the
Class A Reserve Account, to pay the organizational, start-up and
transactional expenses of the Trust, to pay the balance to the
Depositor pursuant to the Sale and Servicing Agreement, and to fund the
Class B Reserve Account, if any, with amounts contributed by the
Depositor;
(iii) to pay interest on and principal of the Notes and the
Certificates and Available Funds to the Seller pursuant to the Sale and
Servicing Agreement and the Indenture;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate (other than the Certificate Distribution
Account, the Class B Reserve Account, and any money, financial assets
or other property from time to time held in or credited to, or
purchased with funds from, either of such accounts, which shall be part
of the Owner Trust Estate but not subject to the Grant under the
Indenture) to the Indenture Trustee pursuant to the Indenture;
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(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Noteholders, the Certificateholders and the Seller.
(b) The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Business Trust Statute, and the Owner Trustee accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Owner Trust Estate. As of
November 1, 1998, the Depositor sold, assigned, transferred, conveyed and set
over to the Owner Trustee the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of such date, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that (a) the Trust constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust and (b) solely for income and
franchise tax purposes, the Trust shall be treated (i) if it has a single
beneficial owner, as a non-entity and (ii) if it has more than one
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beneficial owner, as a partnership, with the assets of the partnership being the
Receivables and other Trust Property held by the Trust, the partners of the
partner ship being the Certificateholders and the Notes constituting
indebtedness of the partnership. The parties agree that, unless otherwise
required by the appropriate tax authorities, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust either as a nonentity or as a partnership for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust. The Owner Trustee has
filed the Certificate of Trust with the Secretary of State of Delaware.
SECTION 2.7. Title to Trust Property. Legal title to the entirety of
the Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity, except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.8. Situs of Trust. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than the State of Delaware; provided, however, that 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,
New York or Texas, and payments will be made by the Trust only from Delaware,
New York or Texas. The only office of the Trust will be at the Corporate Trust
Office in the State of Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
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(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
(c) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms, and the Depositor has full power and
authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the articles of incorporation
or by-laws of the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Basic Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor or its
properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
Federal income tax attributes, or Applicable Tax State franchise or income tax
attributes, of the Notes.
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(f) The representations and warranties of the Depositor in Section 3.1
of the Purchase Agreement are true and correct.
SECTION 2.10. Federal Income Tax Matters. (a) The Certificateholders
acknowledge that it is their intent and that they understand it is the intent of
the Depositor and the Servicer that, for purposes of Federal income, state and
local income and franchise tax and any other income taxes, the Trust will be
treated either as a "nonentity" under Treas. Reg. Section 301.7701-3 or as a
partnership, and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to such treatment and
agree to take no action inconsistent with such treatment. For each taxable year
(or portion thereof), other than periods in which there is only one
Certificateholder and with respect to which the Depositor has received an
opinion of counsel that the Trust will be characterized as a "nonentity" under
Treas. Reg. Section 301.7701-3 for Federal, state and all other income tax
purposes,
(i) amounts paid to the Depositor pursuant to Sections 4.7(a)
and (d) of the Sale and Servicing Agreement for such year (or other
period) shall be treated as a guaranteed payment within the meaning of
Section 707(c) of the Code; and
(ii) all remaining net income or net loss, as the case may
be, of the Trust for such year (or other period) as determined for
Federal income tax purposes (and each item of income, gain, credit,
loss or deduction entering into the computation thereof) shall be
allocated to the Certificateholders pro rata in accordance with the
outstanding principal balances of their respective Certificates.
(b) The Depositor is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or the Certificateholders or as otherwise required by the Code.
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ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates. (a) (i) The Class B Certificates shall
be issued in one or more registered, definitive, physical certificates each in
the form set forth in Exhibit A, in minimum denominations of at least $1,000,000
and multiples of $1,000 in excess thereof; provided, however, that a single
Certificate may be issued in a denomination equal to the Initial Certificate
Balance less the aggregate denominations of all other Certificates or a
denomination less than $1,000. No Certificate may be sold, transferred,
assigned, participated, pledged, or otherwise disposed of (any such act, a
"Transfer") to any Person except in accordance with the provisions of this
Section and Section 3.4, and any attempted Transfer in violation of this Section
3.2 or Section 3.4 shall be null and void (each, a "Void Transfer").
(ii) Notwithstanding the foregoing, following the delivery to the Owner
Trustee of an Opinion of Counsel to the effect that the elimination of
restrictions on transfer will not cause the Trust to be taxable as a corporation
for federal income tax purposes or for purposes of the tax laws of any
Applicable Tax State, this Agreement may be amended to modify or delete transfer
restrictions in accordance with such Opinion of Counsel.
(iii) Furthermore, notwithstanding the foregoing or anything to the
contrary set forth herein, no Transfer of a Certificate by the Depositor, as the
initial Holder of all of the Certificates, or by any subsequent Holder of all of
the Certificates, to any Person will be effective unless and until (a) such
transferor delivers to the Owner Trustee an Opinion of Counsel to the effect
that the proposed Transfer will not cause the Trust to be taxable as a
corporation or as a partnership for federal income tax purposes or purposes of
the tax laws of any Applicable Tax State, or (b) such transferor delivers to the
Owner Trustee an officer's certificate that such transferor has deposited
sufficient funds in the applicable or necessary Reserve Accounts or otherwise
provided for any tax liability which may or will arise as a result of such
Transfer.
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(b) The Certificates may be in printed or typewritten form and shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(c) If a Transfer of the Certificates is permitted pursuant to this
Section 3.2 and Section 3.4, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificates, in an aggregate
principal amount equal to the Initial Certificate Balance, to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president, any executive
vice president, any vice president, its secretary or its treasurer, without
further corporate action by the Depositor, in authorized denominations. No
Certificate shall entitle its Holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit A
attached hereto executed by the Owner Trustee or The Chase Manhattan Bank, as
the Owner Trustee's authenticating agent, or any successor thereto hereunder, by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. The Chase Manhattan Bank shall be
the initial Certificate Registrar.
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No Transfer of a Certificate shall be recognized except upon registration of
such Transfer in the Certificate Register.
(b) No Certificateholder shall Transfer any Certificate initially held
by it unless such transfer is made pursuant to an effective registration
statement or otherwise in accordance with the requirements under the Securities
Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer is to be made in reliance upon an
exemption from the Securities Act, and under the applicable state securities
laws, (i) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the Securities Act, applicable state
securities laws and other relevant laws, which Opinion of Counsel shall not be
an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii)
the Certificate Registrar shall require the transferee to execute a
certification acceptable to and in form and substance satisfactory to the
Certificate Registrar setting forth the facts surrounding such transfer.
(c) No Transfer of any Certificate shall be permitted, recognized or
recorded unless the Depositor has consented in writing to such Transfer, which
consent may be withheld in the sole discretion of the Depositor, provided,
however, that no such consent of the Depositor shall be required where the
proposed transferee is, and at the time of the Transfer will be, a
Certificateholder. Each Certificate shall bear a legend to the following effect
unless determined otherwise by the Administrator (as certified to the
Certificate Registrar in an Officer's Certificate) consistent with applicable
law:
"THIS CLASS B CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER
HEREOF, BY PURCHASING THIS CLASS B CERTIFICATE, AGREES FOR THE BENEFIT OF THE
TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHER WISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE
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HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST
AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT,
(2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT
AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE
RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN
THE FORM ATTACHED AS EXHIBIT E TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE
TRUST AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE
DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO
EXISTING CERTIFICATEHOLDERS, THIS CLASS B CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE
DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)."
THIS CLASS B CERTIFICATE MAY NOT BE ACQUIRED BY ANY (A) EMPLOYEE
BENEFIT PLAN, AS DEFINED IN SECTION 3(3) OF
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THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THAT
IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, AS DEFINED IN SECTION 4975(E)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), THAT IS SUBJECT TO
SECTION 4975 OF THE CODE, (C) GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA, THAT IS SUBJECT TO ANY STATE, LOCAL OR FEDERAL LAW WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, (D) ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS"
(WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION 29 C.F.R. Section 2510.3-
101 OR OTHERWISE UNDER ERISA) BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE
ENTITY OR (E) PERSON INVESTING "PLAN ASSETS" OF ANY SUCH PLAN (INCLUDING, FOR
PURPOSES OF CLAUSE (D) AND THIS CLAUSE (E), AN INSURANCE COMPANY GENERAL
ACCOUNT, BUT EXCLUDING ANY ENTITY REGISTERED UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED).
(d) As a condition to the registration of any Transfer of a
Certificate, the prospective transferee of such a Certificate shall represent to
the Owner Trustee and the Certificate Registrar the following:
(i) It has neither acquired nor will it Transfer any
Certificate it purchases (or any interest therein) or cause any such
Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of section
7704(b)(1) of the Code, including, without limitation, an
over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations.
(ii) It either (A) is not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. Federal income tax
purposes, or (B) is such an entity, but none of the direct or indirect
beneficial owners of any of the interests in such transferee have
allowed or caused, or will allow or cause, 80% or more (or such other
percentage as the Depositor may establish prior to the time of such
proposed Transfer) of the value of such interests to be attributable to
such transferee's ownership of Certificates.
(iii) It understands that no subsequent Transfer of the
Certificates is permitted unless (A) such Transfer is of a Certificate
with a denomination of at least $1,000,000 and (B) the Depositor
consents in writing (which consent
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may be withheld for any reason or for no reason) to the proposed
Transfer; provided, however, that no such consent shall be required
where the proposed transferee is, and at the time of the Transfer will
be, a Holder of a Certificate.
(iv) It understands that the opinion of tax counsel that the
Trust is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs
(i), (ii) and (iii) above.
(v) If it is acquiring any Certificates as a fiduciary or
agent for one or more investor accounts, it has sole investment
discretion with respect to each such account and it has full power to
make the acknowledgments, representations and agreements contained
herein on behalf of each such account.
(vi) It is not (A) an employee benefit plan, as defined in
Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan,
as defined in Section 4975(e)(1) of the Code, that is subject to
Section 4975 of the Code, (C) a governmental plan, as defined in
Section 3(32) of ERISA, that is subject to any state, local or other
Federal law which is, to a material extent, similar to the provisions
of Section 406 of ERISA or Section 4975 of the Code, (D) an entity
whose underlying assets include "plan assets" (within the meaning of
Department of Labor Regulation 29 C.F.R. Section 2510.3-101 or
otherwise under ERISA) by reason of a plan's investment in the entity
or (E) a Person investing "plan assets" of any such plan (including,
for purposes of clause (D) and this clause (E), an insurance company
general account, but excluding any entity registered under the
Investment Company Act of 1940, as amended).
(vii) It is a Person who is either (A) (1) a citizen or
resident of the United States, (2) a corporation, partnership or other
entity organized in or under the laws of the United States or any
political subdivision thereof or (3) a Person not described in (1) or
(2) whose ownership of the Certificates is effectively connected with
such Person's conduct of a trade or business within the United States
(within the meaning of the Code) and who provides the Depositor and the
Owner Trustee an IRS Form 4224 (and such other certifications,
representations or opinions of counsel as may be requested by the
Depositor or the Owner Trustee) or (B) an estate or trust the income of
which is includible in gross income for United States Federal income
tax purposes, regardless of source.
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(viii) It understands that any purported Transfer of any
Certificate (or any interest therein) in contravention of any of the
restrictions and conditions (including any violation of the
representation in paragraph (ii) above by an investor who continues to
hold such Certificates occurring any time after the Transfer in which
it acquired such Certificates) in this Section 3.4 shall be a Void
Transfer, and the purported transferee in a Void Transfer shall not be
recognized by the Trust or any other Person as a Certificateholder for
any purpose.
(ix) It agrees that if it determines to Transfer any of the
Certificates it will cause its proposed transferee to provide to the
Trust and the Certificate Registrar a letter substantially in the form
of Exhibit D or E hereof, as applicable, or such other written
statement as the Depositor shall prescribe.
(e) By acceptance of any Certificate, the Certificateholder thereof
specifically agrees with and represents to the Depositor, the Certificate
Registrar and the Trust that no Transfer of such Certificate shall be made
unless the registration requirements of the Securities Act and any applicable
state securities laws are complied with, or such Transfer is exempt from the
registration requirements under the Securities Act because the Transfer
satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A under the
Securities Act ("Rule 144A"), to a transferee who the transferor
reasonably believes is a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified
Institutional Buyer and to whom notice is given that such transfer is
being made in reliance upon Rule 144A under the Securities Act and (x)
the transferor executes and delivers to the Trust and the Certificate
Registrar a Rule 144A transferor certificate substantially in the form
attached as Exhibit C and (y) the transferee executes and delivers to
the Trust and the Certificate Registrar an investment letter
substantially in the form attached as Exhibit D;
(ii) after the appropriate holding period, such Transfer is
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 under the Securities Act and the transferee, if
requested by the Owner Trustee or the Certificate Registrar, delivers
an Opinion of Counsel in form and substance satisfactory to the Trust
and the Depositor; and
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(iii) such Transfer is to an institutional accredited investor
as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the Securities Act in a transaction exempt from the
registration requirements of the Securities Act, such Transfer is in
accordance with any applicable securities laws of any state of the
United States or any other jurisdiction, and such investor executes and
delivers to the Trust and the Certificate Registrar an investment
letter substantially in the form attached as Exhibit E.
(f) The Trust, with the assistance of the Administrator as provided in
the Administration Agreement, shall make available to the prospective transferor
and transferee information requested to satisfy the requirements of paragraph
(d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information
shall include any or all of the following items requested by the prospective
transferee:
(i) each statement delivered to Certificateholders pursuant to
Section 4.9 of the Sale and Servicing Agreement on each Payment Date
preceding such request; and
(ii) such other information as is reasonably available to the
Administrator in order to comply with requests for information
pursuant to Rule 144A under the Securities Act.
None of the Depositor, the Certificate Registrar, the Owner Trustee or
the Trust is under an obligation to register any Certificate under the
Securities Act or any other securities law.
(g) (i) Upon surrender for registration of Transfer of any Certificate
at the office or agency maintained pursuant to Section 3.8 and upon compliance
with any provisions of this Agreement relating to such Transfer, the Owner
Trustee shall execute, authenticate and deliver (or shall cause The Chase
Manhattan Bank, as its authenticating agent, or any successor thereto hereunder,
to authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(ii) Subject to Section 3.4(b) and (c), at the option of a
Certificateholder, Certificates may be exchanged for other Certificates
of authorized denominations of a like aggregate amount upon surrender
of the
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Certificates to be exchanged at the office or agency maintained
pursuant to Section 3.8.
(iii) Every Certificate presented or surrendered for
registration of Transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form 4224 or W-9 in form
satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or its attorney duly authorized in
writing. Each Certificate surrendered for registration of Transfer or
exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
(iv) No service charge shall be made for any registration of
Transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any Transfer or exchange of Certificates.
(h) (i) The provisions of this Section 3.4 and of this Agreement
generally are intended to prevent the Trust from being characterized as a
"publicly traded partnership" within the meaning of Section 7704 of the Code, in
reliance on Treas. Reg. Sections 1.7704-1(e) and (h), and the Depositor
shall take such intent into account in determining whether or not to consent to
any proposed Transfer of any Certificate.
(ii) The preceding provisions of this Section 3.4
notwithstanding, the Owner Trustee shall not make and the Certificate
Registrar shall not register any Transfer or exchange of Certificates
for a period of fifteen (15) days preceding the due date for any
payment with respect to the Certificates.
(iii) Notwithstanding anything contained herein to the
contrary, neither the Owner Trustee nor the Certificate Registrar shall
be responsible for ascertaining whether any transfer complies with the
registration provisions or exemptions from the Securities Act, the
Exchange Act, applicable state securities law or the Investment Company
Act; provided, however, that if a certification is specifically
required to be delivered to the Owner Trustee or the Certificate
Registrar by a purchaser or transferee of a Certificate, the Owner
Trustee or the Certificate Registrar, as the case may be, shall be
under a duty to examine the same to determine whether it conforms to
the require-
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ments of this Trust Agreement and to register transfers only upon
receipt of documents and certifications specified herein and shall
promptly notify the party delivering the same if such certification
does not so conform.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
The Chase Manhattan Bank, as the Owner Trustee's authenticating agent, or any
successor thereto hereunder, shall authenticate and deliver, in exchange for, or
in lieu of, any such mutilated, destroyed, lost or stolen Certificate, as the
case may be, a new Certificate, as the case may be, of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar and any Paying Agent may treat the Person in whose
name any Certificate shall be registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Depositor or the Indenture Trustee, within fifteen (15) days after receipt by
the Owner Trustee of a written request therefor from the Servicer, the
Depositor, or the Indenture Trustee, as the case may be, a list, in such form as
the requesting party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holders of Certificates evidencing not less
than twenty-five percent (25%) of the Certificate
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Balance apply in writing to the Owner Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Owner Trustee shall, within five (5) Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Servicer, the Depositor, the Certificate
Registrar, the Indenture Trustee or the Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in The Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
Transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates The Chase Manhattan Bank, 55 Water Street, New
York, New York 10041 as its office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor and to the Certificateholders of any
change in the location of the Certificate Registrar or any such office or
agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2, and shall make distributions from the Class B Reserve
Account, and investments of any amounts or property held therein or credited
thereto, pursuant to and in accordance with the Indenture and the Sale and
Servicing Agreement, and shall report the amounts of such distributions and
deposits to the Owner Trustee. Any Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account and the Class B
Reserve Account for the purpose of making the distributions referred to above.
The Owner Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Paying Agent shall initially be Citibank, N.A., and any co-paying agent
chosen by the Owner Trustee. Citibank, N.A. shall have the right to resign as
Paying Agent upon thirty (30) days' written notice to the Owner Trustee. In the
event that Citibank, N.A. shall no longer be the Paying Agent, the Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such
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successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-Paying Agent unless the context requires
otherwise. Without limiting the generality of the foregoing or any other
provision hereof, including, without limitation, Section 8.2 hereof, the rights
and protections afforded to any Paying Agent under either the Indenture
(including, without limitation, Section 6.7 thereof), or the Sale and Servicing
Agreement (including, without limitation, Section 6.2 thereof), shall also be
afforded to any Paying Agent hereunder.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, (a) at least ten (10) days
before the taking of such action, the Owner Trustee shall notify the
Certificateholders and the Rating Agencies in writing of the proposed action
(provided that any failure to give such notice shall not impair or affect the
effectiveness or validity of any such action) and (b) in the case of items (v),
(vi) and (vii) below, the Owner Trustee shall not take such action if
Certificateholders holding not less than a majority of the aggregate Certificate
Balance shall have notified the Owner Trustee in writing prior to the tenth
(10th) day after such notice is given that such Certificateholders have not
consented to such action or provided alternative direction:
(i) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought by the Servicer in connection with
the collection of the Receivables in the ordinary course of business)
and the settlement of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection by the Servicer of the Receivables);
(ii) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(iii) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(iv) the amendment, change or modification of any of the Basic
Documents, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Certificateholders;
(v) the amendment of the Indenture by a supplemental indenture
in circumstances where (A) the consent of any Noteholder is not
required or (B) the principal of the Notes, together with accrued and
unpaid interest thereon, shall have been paid in full, and the
Indenture shall have been
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discharged in accordance with its terms, and such amendment materially
adversely affects the interests of the Certificateholders;
(vi) the amendment, change or modification of any of the Basic
Documents (other than this Agreement pursuant to Section 11.1) in
circumstances where (A) the consent of any Noteholder is not required
or (B) the principal of the Notes, together with accrued and unpaid
interest thereon, shall have been paid in full, and the Indenture shall
have been discharged in accordance with its terms, and such amendment,
change or modification materially adversely affects the interests of
the Certificateholders; or
(vii) the appointment pursuant to this Agreement of a
successor Owner Trustee, Certificate Registrar or Paying Agent, or the
consent to the assignment by the Owner Trustee, Certificate Registrar
or Paying Agent of its respective obligations under this Agreement.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except (a) upon the occurrence of an Event
of Servicing Termination subsequent to the payment in full of the principal of
the Notes and any accrued and unpaid interest thereon, and the discharge of the
Indenture in accordance with its terms, and (b) in accordance with the written
direction of Certificateholders holding not less than a majority of the
aggregate Certificate Balance, (i) remove the Servicer under the Sale and
Servicing Agreement pursuant to Article VII thereof, (ii) appoint a successor
Servicer pursuant to Article VII of the Sale and Servicing Agreement, (iii)
remove the Administrator under the Administration Agreement pursuant to Section
8 thereof, (iv) appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement or (v) sell the Receivables after the termination of
the Indenture, except as expressly provided in the Basic Documents.
SECTION 4.3. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the other Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.4. Majority Control. Except as expressly provided herein or
in any other Basic Document, any action that may be taken by the
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Certificateholders under this Agreement may be taken by the Holders of
Certificates evidencing not less than a majority of the Certificate Balance.
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.
Pursuant to Section 4.1(c) and 4.7(a), respectively, of the Sale and Servicing
Agreement, there have been established and there shall be maintained (a) a
segregated trust account in the name of the Owner Trustee at Citibank, N.A.,
which shall be designated as the "Certificate Distribution Account", and (b) a
segregated trust account in the name of the Owner Trustee at Citibank, N.A.,
which shall be designated as the "Class B Reserve Account". The Certificate
Distribution Account and the Class B Reserve Account each shall be held in trust
by Citibank, N.A., as the initial Paying Agent hereunder, or by any successor
Paying Agent hereunder, in the name of the Owner Trustee for the benefit of the
Certificateholders. Except as expressly provided in Section 3.9, the
Certificate Distribution Account and the Class B Reserve Account each shall be
under the sole dominion and control of the Owner Trustee. All monies deposited
from time to time in the Certificate Distribution Account or the Class B Reserve
Account pursuant to the Sale and Servicing Agreement or the Indenture shall be
applied as provided in this Agreement, the Sale and Servicing Agreement and the
Indenture, and as specified in any written direction by the Administrator, the
Seller or the Servicer prescribed hereunder or thereunder.
SECTION 5.2. Application of Trust Funds.
(a) The principal of the Certificates shall be payable in installments
on each Payment Date in an aggregate amount determined in accordance with the
Sale and Servicing Agreement. The principal amount of the Certificates, to the
extent not previously paid, will be due on the Class B Final Payment Date. The
Certificates will bear interest at the Class B Rate. Interest on the
Certificates will be calculated on the basis of a 360 day year of twelve 30-day
months.
(b) On each Payment Date, the Owner Trustee (if the Owner Trustee is
not the Paying Agent and the Certificate Distribution Account is not then held
by the Paying Agent) shall, based on the information contained in the Servicer's
Certificate delivered on the relevant Determination Date pursuant to Section 3.9
of the Sale and Servicing Agreement, withdraw and transfer the amount deposited
pursuant to Section 2.8(a) of the Indenture in the Certificate Distribution
Account on account of principal of, or interest on, the Certificates on such
Payment Date to the Paying Agent, or (if the Paying Agent is then holding the
Certificate Distribution
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Account), the Paying Agent, based upon such information, shall withdraw such
amount from the Certificate Distribution Account, for distribution to the
Certificateholders pro rata based on the outstanding Certificate Balance of the
Certificates as determined in such Servicer's Certificate.
(c) On each Payment Date, the Owner Trustee shall, or shall cause the
Paying Agent to, send to each Certificateholder the statement provided to the
Owner Trustee by the Servicer pursuant to Section 4.9 of the Sale and Servicing
Agreement with respect to such Payment Date.
(d) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section 5.2. The Owner Trustee and each Paying Agent is hereby authorized
and directed to retain as determined in writing by the Administrator from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any such withholding tax that is legally owed by the Trust (but
such authorization shall not prevent the Owner Trustee from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is withheld by the
Trust and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Certificateholder), the Owner Trustee, in its
sole discretion, or the Paying Agent, as directed in writing by the
Administrator, may withhold such amounts in accordance with this paragraph (d).
In the event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if (a)
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five (5) Business Days prior to such
Payment Date, or (b) such Certificateholder is the Depositor or, if not, by
check mailed to such Certificateholder at the address of such
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Holder appearing in the Certificate Register. Notwithstanding the foregoing, the
final distribution in respect of any Certificate (whether on the Class B Final
Payment Date or otherwise) will be payable only upon presentation and surrender
of such Certificate at the office or agency maintained for that purpose by the
Owner Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. (a) The Owner
Trustee (or the Administrator on its behalf) shall, based on information
provided by the Depositor, (i) maintain (or cause to be maintained) the books of
the Trust on the basis of a fiscal year ending December 31 and based on the
accrual method of accounting, (ii) deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1) to enable each Certificateholder to
prepare its Federal and state income tax returns, (iii) file such tax returns
relating to the Trust (including a partnership information return, IRS Form
1065), and make such elections as may from time to time be required or
appropriate under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
Federal income tax purposes, (iv) cause such tax returns to be signed in the
manner required by law and (v) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.2(d) with respect to income
or distributions to Certificateholders. The Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
(b) The Owner Trustee (or the Administrator on its behalf) may satisfy
the obligations of the Owner Trustee under this Section 5.5 by retaining, at the
expense of the Depositor, a firm of independent public accountants (the
"Accountants") chosen by the Depositor which shall perform the filing
obligations of the Owner Trustee hereunder. The Accountants will provide prior
to January 15, 2000, a letter in form and substance satisfactory to the Owner
Trustee and each Paying Agent as to whether any federal tax withholding on
Certificates is then required and, if
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required, the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Accountants shall be required to update the letter
in each instance that any additional tax withholding is subsequently required or
any previously required tax withholding shall no longer be required. The Owner
Trustee (or the Administrator on its behalf) shall be deemed to have discharged
the obligations of the Owner Trustee pursuant to this Section upon the
retention of the Accountants, and the Owner Trustee (or the Administrator, as
applicable) shall not have any liability with respect to the default or
misconduct of the Accountants.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The
Depositor, as general partner for income tax purposes, shall sign, on behalf of
the Trust, the tax returns of the Trust.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement, in each case, in such form as the Depositor shall
approve, as evidenced conclusively by the Owner Trustee's execution thereof and
the Depositor's execution of this Agreement, and to direct the Indenture
Trustee to authenticate and deliver Notes in the aggregate principal amount of
$1,549,800,000, comprised of $360,000,000 in aggregate principal amount of Class
A-1 Notes, $508,000,000 in aggregate principal amount of Class A-2 Notes,
$440,000,000 in aggregate principal amount of Class A-3 Notes and $241,800,000
in aggregate principal amount of Class A-4 Notes. In addition to the foregoing,
the Owner Trustee is authorized to take all actions required of the Trust
pursuant to the Basic Documents. The Owner Trustee is further authorized from
time to time to take such action on behalf of the Trust as is permitted by the
Basic Documents and which the Servicer or the Administrator recommends with
respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the lien of the Indenture and in accordance with the provisions of
this Agreement and the other Basic Documents. Notwithstanding the foregoing, the
Owner Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator is
required in the Administration Agreement to perform any act or to discharge such
duty of the Owner Trustee or the Trust hereunder or under any other Basic
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 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the terms of the Basic Documents, the Certificateholders may, by
written instruction, direct the Owner Trustee in the management of the Trust.
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(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Subject to Section 4.1, whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms
of this Agreement or any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall deem
to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the application of
any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action or
inaction.
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SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the Trust is a party, except as expressly provided
by the terms of this Agreement or in any document or written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any other Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any lien
(other than the lien of the Indenture) on any part of the Owner Trust Estate
that results from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (a) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (b) in accordance with the other Basic
Documents to which the Trust or the Owner Trust is a party and (c) in accordance
with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would (i) affect the
treatment of the Notes as indebtedness for Federal income or Delaware, New York
or Connecticut income or franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for Federal income or Delaware, New York or
Connecticut income or franchise tax purposes or (iii) cause the Trust or any
portion thereof to be taxable as an association or publicly traded partnership
taxable as a corporation for Federal income or Delaware, New York or Connecticut
income or franchise tax purposes. The Certificateholders shall not direct the
Owner Trustee to take action that would violate the provisions of this Section
6.6.
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ARTICLE VII
REGARDING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby amended and restated and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement to
which the Trust or Owner Trustee is a party and the other Basic Documents. The
Owner Trustee shall not be answerable or accountable hereunder or under any
other Basic Document under any circumstances, except (a) for its own willful
misconduct, bad faith or negligence or (b) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3 expressly made by the Owner
Trustee, in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(i) the Owner Trustee shall not be liable for any error of
judgment made by a responsible officer of the Owner Trustee;
(ii) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
provisions of this Agreement at the instructions of any
Certificateholder, the Indenture Trustee, the Depositor, the
Administrator or the Servicer;
(iii) no provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of
its rights or powers hereunder or under any other Basic Document if the
Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(iv) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificates.
(v) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof
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by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate or for or in respect
of the validity or sufficiency of the other Basic Documents, other than
the certificate of authentication on the Certificates, and the Owner
Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the other Basic Documents;
(vi) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Depositor or the
Indenture Trustee under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Servicer under the Sale and Servicing
Agreement or the Indenture Trustee under the Indenture; and
(vii) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or
to institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document,
at the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any other Basic
Document shall not be construed as a duty, and the Owner Trustee shall
not be answerable for other than its willful misconduct, bad faith or
negligence in the performance of any such act.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 7.3. Representations and Warranties. The Owner Trustee, in its
individual capacity, hereby represents and warrants to the Depositor, for the
benefit of the Certificateholders, that:
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(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee may
rely upon, shall be protected in relying upon, and shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents
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or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled Persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such Persons and not contrary to this Agreement or any other Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby amended and restated, Chase
Manhattan Bank Delaware acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any other Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of the Owner Trustee on the Certificates) shall be taken as
the statements of the Depositor, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement, of any other Basic Document or of
the Certificates (other than the signature and countersignature of the Owner
Trustee on the Certificates) or the Notes, or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor or the Servicer
with any warranty or representation made under any Basic Document or in any
related document, or the accuracy of any such warranty or representation or any
action of the Indenture Trustee, the Administrator or the Servicer or any
subservicer taken in the name of the Owner Trustee.
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SECTION 7.7. Owner Trustee May Own Certificates and Notes. The Owner
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the Servicer,
the Administrator and the Indenture Trustee in banking transactions with the
same rights as it would have if it were not Owner Trustee.
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Owner Trustee, and the Owner Trustee shall be entitled to and reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
SECTION 8.2. Indemnification. The Depositor shall be liable as prime
obligor for, and shall indemnify Chase Manhattan Bank Delaware and the Owner
Trustee, any Paying Agent hereunder and their respective successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against Chase Manhattan Bank Delaware or the Owner Trustee, any Paying
Agent hereunder or any Indemnified Party in any way relating to or arising out
of this Agreement, the other Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee or any Paying Agent hereunder; provided that the Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.1. The Depositor will in no event be entitled to make any
claim upon the Owner Trust Estate for the payment or reimbursement of any
Expenses. The indemnities contained in this Section 8.2 shall survive the
resignation or termination of the Owner Trustee or any Paying Agent hereunder or
the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section 8.2, the
choice of legal counsel of the Owner Trustee or any Paying Agent, as the case
may be, shall be subject to the approval of the Depositor, which approval shall
not be unreasonably withheld.
SECTION 8.3. Payments to Indemnified Parties. Any amounts paid to the
Owner Trustee or any other Indemnified Party pursuant to this Article
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VIII shall be deemed not to be a part of the Owner Trust Estate immediately
after such payment.
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ARTICLE IX
TERMINATION
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than the provisions of Article VIII) and the Trust shall terminate and be of no
further force or effect (i) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement and Article V or (ii)
the Payment Date next succeeding the month which is one year after the maturity
or other liquidation of the last Receivable and the disposition of any amounts
received upon liquidation of any property remaining in the Trust. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) No Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates, to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders mailed within five
(5) Business Days of receipt of notice of such termination from the Servicer,
stating (i) the Payment Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates,
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders, amounts distributable on such Payment Date pursuant to
Section 5.2.
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(d) In the event that all of the Certificateholders shall not surrender
their Certificates, as the case may be, for cancellation within six (6)
months after the date specified in the above mentioned written notice, the Owner
Trustee shall give a second written notice to the remaining Certificateholders
to surrender their Certificates, respectively, for cancellation and receive the
final distribution with respect thereto. If within one year after the second
notice all the Certificates shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders, as the case may
be, concerning surrender of their Certificates as the case may be, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable escheat laws, any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 9.2. Bankruptcy of the Depositor. Promptly after the occurrence
of any Insolvency Event with respect to the Depositor, (a) the Depositor shall
give the Indenture Trustee and the Owner Trustee written notice of such
Insolvency Event, (b) the Owner Trustee shall, upon the receipt of such written
notice from the Depositor, give prompt written notice to the Certificateholders
and the Indenture Trustee, of the occurrence of such event and (c) the Indenture
Trustee shall, upon receipt of written notice of such Insolvency Event from the
Owner Trustee or the Depositor, give prompt written notice to the Noteholders of
the occurrence of such event.
SECTION 9.3. Prepayment of the Certificates. (a) The Certificates shall
be prepaid in whole, but not in part, at the direction of the Servicer pursuant
to Section 8.1(a) of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the assets of the Trust
pursuant to said Section 8.1(a) (the Payment Date on which such prepayment shall
be made, the "Prepayment Date"), and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay the in full the
Redemption Price of the Notes and the Prepayment Price of the Certificates. The
Servicer shall furnish the Rating Agencies and the Certificateholders notice of
such prepayment. If the Certificates are to be prepaid pursuant to this Section
9.3(a), the Servicer shall furnish notice of
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such election to the Owner Trustee not later than twenty (20) days prior to the
Prepayment Date and shall deposit by 10:00 A.M. (New York City time) on the
Prepayment Date in the Certificate Distribution Account the Prepayment Price of
the Certificates to be prepaid, whereupon all such Certificates shall be due and
payable on the Prepayment Date.
(b) In addition, following payment in full of the Notes, the Holders of
one hundred percent (100%) of the Certificate Balance may agree to liquidate the
Trust and prepay the Certificates.
(c) Notice of prepayment under Section 9.3(a) shall be given by the
Owner Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted promptly following receipt of notice from the Trust or the Servicer
pursuant to Section 9.3(a), but not later than ten (10) days prior to the
applicable Prepayment Date, to each Holder of a Certificate as of the close of
business on the Record Date preceding the applicable Prepayment Date, at such
Holder's address or facsimile number appearing in the Certificate Register. All
such notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to be surrendered
for payment of the Prepayment Price (which shall be the office or
agency of the Owner Trustee to be maintained as provided in Section
3.8).
Notice of prepayment of the Certificates shall be given by the Owner Trustee in
the name and at the expense and direction of the Servicer. Failure to give
notice of prepayment, or any defect therein, to any Holder of any Certificate
shall not impair or affect the effectiveness or validity of the prepayment of
any other Certificate.
(d) The Certificates to be prepaid shall, following notice of
prepayment as required by Section 9.3(c), on the Prepayment Date be paid by the
Trust at the Prepayment Price and (unless the Trust shall default in the payment
of the Prepayment Price) no interest shall accrue on the Prepayment Price for
any period after the date to which accrued interest is calculated for purposes
of calculating the Prepayment Price. Following payment in full of the Prepayment
Price, this Agreement (other than the provisions of Article VIII) and the Trust
shall terminate.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times (i) be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) be authorized to exercise
corporate trust powers; (iii) have a combined capital and surplus of at least
$50,000,000 and shall be subject to supervision or examination by Federal or
state authorities; and (iv) shall have (or shall have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or be
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 10.1, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section 10.1, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee. (a) The Owner
Trustee may at any time resign and be discharged from the trusts hereby amended
and restated by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within thirty (30) days after the giving
of such notice of resignation, the resigning Owner Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
(b) If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation (any of the foregoing events, an "Insolvency
Event"), then the Administrator may remove the Owner Trustee. If the
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Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section 10.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses owed
to the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to the Certificateholders, the
Indenture Trustee, the Noteholders and each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. (a) Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective, and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement, and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
(b) No successor Owner Trustee shall accept appointment as provided in
this Section 10.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
(c) Any successor Owner Trustee appointed pursuant to this Section 10.3
shall file an amendment to the Certificate of Trust reflecting the name and
principal place of business of such succession in the State of Delaware.
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(d) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 10.3, the Administrator shall mail notice of the
successor of such Owner Trustee to each Certificateholder, the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within ten (10) days after acceptance of appointment by
the successor Owner Trustee, the successor Owner Trustee shall cause such notice
to be mailed at the expense of the Administrator.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder; provided
that such corporation shall be eligible pursuant to Section 10.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided
further, however, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Owner Trust Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall at any time have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the other provisions of this
Section 10.5, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
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(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement inconsistent with any other provision of this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
satisfactory to the Owner Trustee and the Indenture Trustee adversely affect in
any material respect the interests of any Noteholder or Certificateholder; and
provided further that an Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such amendment (i) will not
materially adversely affect the Federal or any Applicable Tax State income or
franchise taxation of any outstanding Note or Certificate, or any Holder thereof
and (ii) will not cause the Trust to be taxable as a corporation for Federal or
any Applicable Tax State income or franchise tax purposes.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders (as defined in the Indenture) of Notes
evidencing not less than a majority of the aggregate principal amount of the
then outstanding Notes, voting as a group, and the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Balance, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, or change the allocation or priority of,
collections of payments on Receivables or distributions that are required to be
made on any Note or Certificate, or change any Note Interest Rate, the Class B
Rate, the Specified Class A Reserve Balance or the Specified Class B Reserve
Balance, without the consent of the Holders of all the outstanding Notes and
Certificates affected thereby, (ii) reduce the aforesaid percentage of the
principal amount of the then outstanding Notes and the Certificate Balance
required to consent to any such amendment, without the consent of the Holders of
all the outstanding Notes and Certificates affected thereby or (iii) adversely
affect the ratings of any Class of Notes by the Rating Agencies without the
consent, respectively, of Holders
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of Notes evidencing not less than sixty-six and two thirds percent (66 2/3%) of
the aggregate principal amount of the then outstanding Notes of such Class; and
provided further that an Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such amendment (A) will not
materially adversely affect the Federal or any Applicable Tax State income or
franchise taxation of any outstanding Note or Certificate, or any Holder thereof
and (B) will not cause the Trust to be taxable as a corporation for Federal or
any Applicable Tax State income or franchise tax purposes.
(c) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section 11.1 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) The Owner Trustee 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.
(g) Prior to the execution of any amendment to this Trust Agreement or
any amendment to any other agreement to which the Issuer is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Basic Documents and that all conditions precedent in the Basic Documents for the
execution and delivery thereof by the Issuer or the Owner Trustee, as the case
may be, have been satisfied.
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SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided beneficial interest
therein only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title, or interest of the Certificateholders in
and to their beneficial interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.3. Limitation on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Administrator, the Certificateholders, the Servicer
and, to the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement (other than Section 2.3), whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three (3) Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office; if
to the Depositor, ad dressed to Daimler-Benz Vehicle Receivables Corporation at
the address of its principal executive office first above written; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any
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jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee, and each Certificateholder and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.8. Covenant of the Depositor. The Depositor will not at any
time institute against the Trust any bankruptcy proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
SECTION 11.9. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, any
Paying Agent hereunder, by entering into this Agreement, each Certificateholder,
by accepting a Certificate, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and agree that they
will not at any time institute against the Depositor or the Trust, or join in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, this
Agreement or any of the other Basic Documents.
SECTION 11.10. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificates, as the
case may be, represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated in this Agreement, the
Certificates, or the other Basic Documents.
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SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
DAIMLER-BENZ VEHICLE
RECEIVABLES CORPORATION,
as Depositor
By: /s/ H.S. Traison
----------------------------------
Name: Harvey S. Traison
Title: President
CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By: /s/ J. J. Cashin
----------------------------------
Name: John J. Cashin
Title: Vice-President
Acknowledged and Agreed:
CITIBANK, N.A.,
as Paying Agent
By: /s/ Denise Banaszek
----------------------------------
Name: Denise Banaszek
Title: Vice-President
61
EXHIBIT A
NUMBER $[____________]
R-[ ]
THIS CLASS B CERTIFICATE
MAY NOT BE TRANSFERRED BY A
STOCK POWER BUT ONLY AS SET
FORTH BELOW.
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
5.62% CLASS B ASSET BACKED CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CLASS B CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER
HEREOF, BY PURCHASING THIS CLASS B CERTIFICATE, AGREES FOR THE BENEFIT OF THE
TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO
A-1
62
THE TRUST AGREEMENT REFERRED TO BELOW AND (B) THE RECEIPT BY THE TRUST AND THE
CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT
D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE
RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE
TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH
THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO THE TRUST AGREEMENT
OR (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES. IN ADDITION,
EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CLASS B
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH
THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR
ANY REASON OR FOR NO REASON).
THIS CLASS B CERTIFICATE MAY NOT BE ACQUIRED BY ANY (A) EMPLOYEE
BENEFIT PLAN, AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THAT IS SUBJECT TO TITLE I OF ERISA,
(B) PLAN, AS DEFINED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (C)
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, THAT IS SUBJECT TO ANY
STATE, LOCAL OR FEDERAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, (D) ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" (WITHIN THE MEANING OF DEPARTMENT OF
A-2
63
LABOR REGULATION 29 C.F.R. Section 2510.3-101 OR OTHERWISE UNDER ERISA) BY
REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY OR (E) PERSON INVESTING "PLAN
ASSETS" OF ANY SUCH PLAN (INCLUDING, FOR PURPOSES OF CLAUSE (D) AND THIS CLAUSE
(E), AN INSURANCE COMPANY GENERAL ACCOUNT, BUT EXCLUDING ANY ENTITY REGISTERED
UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED).
THE PRINCIPAL OF THIS CLASS B CERTIFICATE IS DISTRIBUTABLE AS SET
FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
A-3
64
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
CLASS B ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of retail installment sales contracts secured by
new and used Mercedes-Benz automobiles and new and used medium- and heavy-duty
trucks and tractors manufactured by Freightliner Corporation and its
subsidiaries (collectively, "Freightliner") and used trucks and tractors and new
and used trailers manufactured by companies other than Freightliner sold to
Daimler-Benz Vehicle Receivables Corporation by Mercedes-Benz Credit Corporation
and sold by Daimler-Benz Vehicle Receivables Corporation to the Trust. The
property of the Trust (other than the Certificate Distribution Account, the
Class B Reserve Account and any money, financial assets or other property from
time to time held in or credited to, or purchased with funds from, either of
such accounts) has been pledged to the Indenture Trustee pursuant to the
Indenture to secure the payment of the Notes issued thereunder.
(This Certificate does not represent an interest in or obligation of
Mercedes-Benz Credit Corporation, Daimler-Benz North America Corporation,
Daimler-Benz Vehicle Receivables Corporation or any of their respective
affiliates, except to the extent described below.)
A-4
65
THIS CERTIFIES THAT [ ] is the registered owner of a [___________]
DOLLARS AND [______] CENTS nonassessable, fully-paid, beneficial interest in
Class B Certificates of Daimler-Benz Vehicle Owner Trust 1998-A (the "Trust")
formed by Daimler-Benz Vehicle Receivables Corporation, a Delaware corporation
(the "Depositor"). The Class B Certificates have an aggregate Initial
Certificate Balance of $81,654,551.40.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Trust Agreement.
Dated: [ ], 1998
CHASE MANHATTAN CHASE MANHATTAN
BANK DELAWARE BANK DELAWARE
as Owner Trustee OR as Owner Trustee
By:________________________ By: THE CHASE MANHATTAN BANK
Authorized Officer as Authenticating Agent
By:________________________
Authorized Officer
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The Trust was created pursuant to a Trust Agreement, dated as of
November 1, 1998 (as amended, supplemented or otherwise modified and in effect
from time to time, the "Trust Agreement"), by and between the Depositor and
Chase Manhattan Bank Delaware, as owner trustee thereunder (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Trust Agreement or the
Sale and Servicing Agreement, dated as of November 1, 1998 (as amended,
supplemented or otherwise modified and in effect from time to time, the "Sale
and Servicing Agreement"), by and among the Trust, the Depositor, as seller (in
such capacity, the "Seller"), and Mercedes-Benz Credit Corporation, as servicer
(in such capacity, the "Servicer"), as applicable.
This Certificate is one of the duly authorized Class B Certificates
designated as "Asset Backed Certificates" (herein called the "Certificates" or
the "Class B Certificates"). This Class B Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of the Trust
includes (i) a pool of retail installment sales contracts for new and used
automobiles and light- or medium-duty trucks, tractors and trailers and certain
rights and obligations thereunder (the "Receivables"), (ii) all monies due or
received thereunder on or after the Cutoff Date; (iii) the Depositor's security
interests in the Financed Vehicles; (iv) all money, financial assets or other
property from time to time held in or credited to, or purchased with funds from,
the Collection Account, the Note Distribution Account, the Certificate
Distribution Account, the Payahead Account and the Reserve Accounts; (v) all of
the Depositor's rights to receive proceeds from claims on physical damage,
credit life and disability insurance policies covering the Financed Vehicles or
Obligors; (vi) all of the Depositor's rights to all documents contained in the
Receivable Files; (vii) all of the Depositor's rights under the Purchase
Agreement and the Sale and Servicing Agreement; (viii) all of the Depositor's
rights, if any, of recourse against Dealers arising out of breaches by Dealers
in connection with the Receivables; (ix) all property (including the right to
receive future Liquidation Proceeds and Recoveries) that secures a Receivable
and that will have been acquired by or on behalf of the Indenture Trustee; (x)
the Servicing Guaranty Agreement and (xi) all proceeds (within the meaning of
Section 9-306 of the Uniform Commercial Code) of the foregoing. The rights of
the Trust in the foregoing property of the Trust (other than the Certificate
Distribution Account, the Class B Reserve Account and any money, financial
assets or other property from time to time held in or credited to, or pur-
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chased with funds from, either of such accounts) have been pledged to the
Indenture Trustee to secure the payment of the Notes.
Under the Trust Agreement, the Sale and Servicing Agreement and the
Indenture, there will be distributed on the twentieth (20th) day of each month
or, if such twentieth (20th) day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing December 21, 1998, to the Holder in whose
name this Certificate is registered at the close of business on the last
Business Day of the calendar month immediately preceding such Payment Date (the
"Record Date"), such Certificateholder's percentage interest in the amount on
deposit in the Certificate Distribution Account to be distributed to
Certificateholders on such Payment Date, including any Accrued Certificate
Interest and any Principal Distribution Amount with respect to the Certificates;
provided, however, that (a) interest will be distributed to the
Certificateholders on each Payment Date only to the extent of funds remaining
after the reimbursement of Advances by the Servicer, the payment of the Total
Servicing Fee and the payment of interest on the Notes on such Payment Date, and
(b) principal will be distributed to the Certificateholders on each Payment Date
only to the extent of funds remaining after the reimbursement of Advances by the
Servicer, the payment of the Total Servicing Fee, the payment of interest on the
Certificates, and the payment of all principal and interest on the Notes on such
Payment Date; provided, further, however, that if not paid prior to such date,
the entire unpaid principal amount of this Certificate together with any accrued
and unpaid interest thereto shall be due and payable on the earlier of the Class
B Final Payment Date and the Prepayment Date, if any, pursuant to Sections 5.2
and 9.1 of the Trust Agreement.
This Certificate shall bear interest at the rate per annum shown above
on each Payment Date unless the principal of this Certificate is paid or made
avail able for payment, on the principal amount of this Certificate outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Certificate will accrue for each
Payment Date from and including the Closing Date (in the case of the first
Payment Date) or from and including the twentieth (20th) date of the calendar
month preceding each Payment Date to but excluding the twentieth (20th) day of
the following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of
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the Noteholders as described in the Sale and Servicing Agreement, the Indenture
and the Trust Agreement.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of Federal income, state and local income
tax and any other income taxes, the Trust will be treated as a partnership and
the Certificateholders (including the Depositor) will be treated as partners in
that partnership. The Depositor and the other Certificateholders, by acceptance
of a Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as partnership interests in
the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor or the Trust, or join in any institution against the Depositor or
the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Any distributions on this Certificate will be made on each Payment Date
as provided in the Trust Agreement by the Owner Trustee or the Paying Agent by
wire transfer or check mailed to the Certificateholder of record in the
Certificate Register as of the Record Date without the presentation or surrender
of this Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for the purpose
by the Owner Trustee in The Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
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This Certificate shall be construed in accordance with the laws of the
State of Delaware, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
DAIMLER-BENZ VEHICLE OWNER
TRUST 1998-A
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By: _______________________________________
Authorized Officer
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[REVERSE OF CLASS B CERTIFICATE]
The Class B Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Administrator, the Owner Trustee
or any Affiliates of any of them and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated herein, in
the Trust Agreement or in the other Basic Documents. In addition, this Class B
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Sale and Servicing Agreement. The Trust will furnish, upon the
request of any Holder of a Certificate, such information as is specified in
paragraph (d)(4) of Rule 144A of the Securities Act of 1933, as amended with
respect to the Trust. A registration statement, which includes the Trust
Agreement as an exhibit thereto, has been filed with the Securities and Exchange
Commission with respect to the Notes of the Trust issued concurrently with this
Certificate.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the Holders
of the Notes and the Holders of the Certificates each voting as a class
evidencing not less than a majority of the principal amount of the then
outstanding Notes and the Certificate Balance, respectively. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and on all future Holders of this Certificate and of any Certificate issued upon
the registration of Transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the Certificates.
This Class B Certificate may be Transferred only under the
circumstances described in Section 3.4 of the Trust Agreement, which, among
other things, requires that each prospective transferee represent in writing in
the form provided as an exhibit to the Trust Agreement that it will not acquire
or Transfer the Certificates through an established securities market, and is
not and will not become, except in certain circumstances, a partnership,
Subchapter S corporation or grantor trust for U.S. Federal income tax purposes.
Any attempted Transfer in contravention of the
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restrictions and conditions of Section 3.4 of the Trust Agreement shall be null
and void. As provided in the Trust Agreement, the Transfer of this Certificate
is registerable in the Certificate Register upon surrender of this Certificate
for registration of Transfer at the offices or agencies of the Certificate
Registrar maintained by the Owner Trustee in The Borough of Manhattan, City of
New York, accompanied by the written representations required by the Trust
Agreement and, if the Depositor has consented to such transfer, a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is The Chase Manhattan Bank.
Except for Certificates issued to the Depositor, the Class B
Certificates are issuable only as registered Certificates without coupons in
denominations of $1,000,000 and in integral multiples of $1,000 in excess
thereof. Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of Transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, any Paying Agent for the
Certificates and any other agent of the Owner Trustee or any agent of the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to the Noteholders
and the Certificateholders of all amounts required to be paid to them pursuant
to the Indenture, the Trust Agreement and the Sale and Servicing Agreement and
any remaining assets of the Trust shall be distributed to the Depositor, in its
capacity as Depositor. The Servicer of the Receivables may at its option
purchase the assets of the Trust at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to ten percent (10%)
of the Initial Pool Balance.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
*/
_____________________________________
Signature Guaranteed:
*/
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
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EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
This Certificate of Trust of DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
(the "Trust"), dated as of November 1, 1998, is being duly executed and filed by
Chase Manhattan Bank Delaware, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Delaware Code,
Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is DAIMLER-BENZ
VEHICLE OWNER TRUST 1998-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201 North
Market Street, Wilmington, DE 19801, Attention: Corporate Trust Administration.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE, not in its individual capacity but solely
as owner trustee under a Trust Agreement
dated as of November 1, 1998
By:__________________________________________
Name:
Title:
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EXHIBIT C
[FORM OF RULE 144A TRANSFEROR CERTIFICATE]
[Date]
Chase Manhattan Bank Delaware,
as Owner Trustee
1201 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
The Chase Manhattan Bank,
as Certificate Registrar
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in denomination of
Class B Asset Backed Certificates (the "Certificates") of Daimler-Benz Vehicle
Owner Trust 1998-A (the "Issuer").
The undersigned is the holder of the Certificates and with this notice
hereby deposits with the Owner Trustee $ [*] in denomination of Certificates and
requests that Certificates in the same aggregate denomination be issued,
executed and authenticated and registered to the purchaser on [________ __,
____] as specified in the Amended and Restated Trust Agreement dated as of
November 1, 1998, relating to the Certificates, as follows:
Name: Denominations: [*]
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the Certificates in a transaction effected in accordance
with the exemption from the registration requirements of the Act provided by
Rule 144A and, (iii) if the purchaser has purchased the Certificates for one or
more accounts for which it is acting as fiduciary or agent, (A) each such
account is a qualified institutional buyer and (B) the purchaser
- -------------------------
[* minimum of $1,000,000]
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is acquiring Certificates for its own account or for one or more institutional
accounts for which it is acting as fiduciary or agent in a minimum amount
equivalent to at least $1,000,000 for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By:__________________________________
Name:
Title:
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EXHIBIT D
[FORM OF INVESTMENT LETTER --
QUALIFIED INSTITUTIONAL BUYER]
[Date]
Daimler-Benz Vehicle Owner Trust 1998-A
as Issuer
Chase Manhattan Bank Delaware,
as Owner Trustee
1201 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
The Chase Manhattan Bank,
as Certificate Registrar
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Class B Asset Backed
Certificates (the "Certificates") of Daimler-Benz Vehicle Owner Trust 1998-A
(the "Issuer"), a trust formed by Daimler-Benz Vehicle Receivables Corporation
(the "Depositor" or "Seller"), we confirm that:
1. We agree to be bound by the restrictions and conditions set forth in
the Amended and Restated Trust Agreement, dated as of November 1, 1998 (the
"Trust Agreement") relating to the Certificates and we agree to be bound by, and
not to resell, transfer, assign, participate, pledge, or otherwise dispose of
(any such act, a "Transfer") the Certificates except in compliance with such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We have neither acquired nor will we Transfer any Certificate we
purchase (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of section 7704(b)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
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3. We either (a) are not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes
or (b) are such an entity, but none of the direct or indirect beneficial owners
of any of the interests in us have allowed or caused, or will allow or cause,
80% or more (or such other percentage as the Seller may establish prior to the
time of such proposed Transfer) of the value of such interests to be
attributable to our ownership of Certificates.
4. We understand that no subsequent Transfer of the Certificates is
permitted unless (i) such Transfer is of a Certificate with a denomination of at
least $1,000,000 and (ii) the Depositor consents in writing (which consent may
be withheld for any reason or for no reason) to the proposed Transfer; provided,
however, that no such consent shall be required where the proposed transferee
is, and at the time of the Transfer will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the Issuer is not
a publicly traded partnership taxable as a corporation is dependent in part on
the accuracy of the representations in paragraphs 2, 3 and 4.
6. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the Certificates
for our own account or for the account of a QIB for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act, and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificates, and we and any accounts for which
we are acting are each able to bear the economic risk of our or their
investment. We acknowledge that the sale of the Certificates to us is being made
in reliance on Rule 144A.
7. We are acquiring each of the Certificates purchased by us for our
own account or for a single account (which is a QIB and from which no resale,
pledge, or other transfer may be made) as to which we exercise sole investment
discretion.
8. We are not (A) an employee benefit plan, as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is subject to Title I of ERISA, (B) a plan, as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), that
is subject to Section 4975 of the Code, (C) a governmental plan, as defined in
Section 3(32) of ERISA, that is subject to any state, local or Federal law which
is, to a material extent, similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, (D) an entity whose underlying assets include "plan
assets" (within the meaning of Department of Labor Regulation 29 C.F.R. Section
2510.3-101 or otherwise under ERISA) by reason of any such plan's investment in
the entity or (E) a person investing "plan assets" of any such plan (including,
for purposes of clause (D) and this clause (E), an insurance company general
account, but excluding any entity registered under the Investment Company Act of
1940, as amended).
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9. We are a person who is either (A) (i) a citizen or resident of the
United States, (ii) a corporation, partnership or other entity organized in or
under the laws of the United States or any political subdivision thereof or
(iii) a person not described in (i) or (ii) whose ownership of the Certificates
is effectively connected with such person's conduct of a trade or business
within the United States (within the meaning of the Code) and who provides the
Depositor and the Issuer an IRS Form 4224 (and such other certifications,
representations or opinions of counsel as may be requested by the Depositor or
the Issuer) or (B) an estate or trust the income of which is includible in gross
income for United States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any Certificate (or
any interest therein) in contravention of the restrictions and conditions
(including any violation of the representation in paragraph 3 by an investor who
continues to hold such Certificates occurring any time after the Transfer in
which it acquired such Certificates) in paragraphs 1 through 9 above shall be
null and void (each, a "Void Transfer"), and the purported transferee in a Void
Transfer shall not be recognized by the Issuer or any other person as a
Certificateholder for any purpose.
11. We agree that if we determine to Transfer any of the Certificates
we will cause our proposed transferee to provide to the Issuer and the
Certificate Registrar a letter substantially in the form of this Exhibit D or
Exhibit E to the Trust Agreement, as applicable.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_________________________
Name:
Title:
Securities To Be Purchased:
$ [principal balance of Certificates]
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EXHIBIT E
[FORM OF INVESTMENT LETTER --
INSTITUTIONAL ACCREDITED INVESTOR]
[Date]
Daimler-Benz Vehicle Owner Trust 1998-A
as Issuer
Chase Manhattan Bank Delaware,
as Owner Trustee
1201 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
The Chase Manhattan Bank,
as Certificate Registrar
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the Class B Asset Backed
Certificates (the "Certificates") of Daimler-Benz Vehicle Owner Trust 1998-A
(the "Issuer"), a trust formed by Daimler-Benz Receivables Corporation (the
"Depositor" or "Seller"), we confirm that:
1. We agree to be bound by the restrictions and conditions set forth in
the Amended or Restated Trust Agreement, dated as of November 1, 1998 (the
"Trust Agreement") relating to the Certificates and we agree to be bound by, and
not to resell, transfer, assign, participate, pledge, or otherwise dispose of
(any such act, a "Transfer") the Certificates except in compliance with such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We have neither acquired nor will we Transfer any Certificate we
purchase (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of section 7704(b)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
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3. We either (a) are not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes
or (b) are such an entity, but none of the direct or indirect beneficial owners
of any of the interests in us have allowed or caused, or will allow or cause,
80% or more (or such other percentage as the Depositor may establish prior to
the time of such proposed Transfer) of the value of such interests to be
attributable to our ownership of Certificates.
4. We understand that no subsequent Transfer of the Certificates is
permitted unless (i) such Transfer is of a Certificate with a denomination of at
least $1,000,000 and (ii) the Depositor consents in writing (which consent may
be withheld for any reason or for no reason) to the proposed Transfer; provided,
however, that no such consent shall be required where the proposed transferee
is, and at the time of the Transfer will be, a holder of a Certificate.
5. We understand that the opinion of tax counsel that the Issuer is not
a publicly traded partnership taxable as a corporation is dependent in part on
the accuracy of the representations in paragraphs 2, 3 and 4 and that in
addition to being subject to having its purchase rescinded, it will be liable
for damages.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act,
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment.
7. We are acquiring each of the Certificates purchased by us for our
own account or for a single account (each of which is an institutional
"accredited investor" and from which no resale, pledge or other transfer may be
made) as to which we exercise sole investment discretion.
8. We are not (A) an employee benefit plan, as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is subject to Title I of ERISA, (B) a plan, as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), that
is subject to Section 4975 of the Code, (C) a governmental plan, as defined in
Section 3(32) of ERISA, that is subject to any state, local or Federal law which
is, to a material extent, similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, (D) an entity whose underlying assets include "plan
assets" (within the meaning of Department of Labor Regulation 29 C.F.R. Section
2510.3-101 or otherwise under ERISA) by reason of any such plan's investment in
the entity or (E) a person investing "plan assets" of any such plan (including,
for purposes of clause (D) and this clause (E), an insurance company general
account, but excluding any entity registered under the Investment Company Act of
1940, as amended).
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9. We are a person who is either (A) (i) a citizen or resident of the
United States, (ii) a corporation, partnership or other entity organized in or
under the laws of the United States or any political subdivision thereof or
(iii) a person not described in (i) or (ii) whose ownership of the Certificates
is effectively connected with such person's conduct of a trade or business
within the United States (within the meaning of the Code) and who provides the
Depositor and the Issuer an IRS Form 4224 (and such other certifications,
representations or opinions of counsel as may be requested by the Depositor or
the Issuer) or (B) an estate or trust the income of which is includible in gross
income for United States Federal income tax purposes, regardless of source.
10. We understand that any purported Transfer of any Certificate (or
any interest therein) in contravention of the restrictions and conditions
(including any violation of the representation in paragraph 3 by an investor who
continues to hold such Certificates occurring any time after the Transfer in
which it acquired such Certificates) in paragraphs 1 through 9 above shall be
null and void (each, a "Void Transfer"), and the purported transferee in a Void
Transfer shall not be recognized by the Issuer or any other person as a
Certificateholder for any purpose.
11. We agree that if we determine to Transfer any of the Certificates,
we will cause our proposed transferee to provide to the Issuer and the
Certificate Registrar a letter substantially in the form of this Exhibit E or
Exhibit D to the Trust Agreement, as applicable.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_________________________
Name:
Title:
E-3