EXECUTION COPY
EXHIBIT 4.2
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TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
DEUTSCHE BANK TRUST COMPANY DELAWARE
OWNER TRUSTEE
DATED AS OF JUNE 2, 2005
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE............................................................. 1
SECTION 1.1 DEFINITIONS................................................................................. 1
ARTICLE II ORGANIZATION.......................................................................................... 1
SECTION 2.1 NAME........................................................................................ 1
SECTION 2.2 OFFICE...................................................................................... 1
SECTION 2.3 PURPOSES AND POWERS......................................................................... 1
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE................................................................ 2
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE.......................................... 2
SECTION 2.6 DECLARATION OF TRUST........................................................................ 2
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS......................................................... 3
SECTION 2.8 TITLE TO TRUST PROPERTY..................................................................... 3
SECTION 2.9 SITUS OF TRUST.............................................................................. 3
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER................................................ 3
SECTION 2.11 TAX TREATMENT............................................................................... 4
ARTICLE III THE CERTIFICATES..................................................................................... 4
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP............................................................... 4
SECTION 3.2 FORM OF THE CERTIFICATES.................................................................... 5
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY...................................................... 5
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES......................... 5
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........................................... 7
SECTION 3.6 PERSONS DEEMED CERTIFICATEHOLDERS........................................................... 8
SECTION 3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES................................... 8
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE....................................................... 8
SECTION 3.9 APPOINTMENT OF PAYING AGENT................................................................. 8
SECTION 3.10 [RESERVED.]................................................................................. 9
SECTION 3.11 [RESERVED].................................................................................. 9
SECTION 3.12 NOTICES TO CLEARING AGENCY.................................................................. 9
SECTION 3.13 DEFINITIVE CERTIFICATES..................................................................... 9
SECTION 3.14 SELLER AS CERTIFICATEHOLDER................................................................. 10
ARTICLE IV ACTIONS BY OWNER TRUSTEE.............................................................................. 10
SECTION 4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS.......................... 10
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS................................ 10
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY..................................... 11
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER................................................... 11
SECTION 4.5 MAJORITY CONTROL............................................................................ 11
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES............................................................. 11
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT........................................... 11
SECTION 5.2 APPLICATION OF TRUST FUNDS.................................................................. 12
SECTION 5.3 METHOD OF PAYMENT........................................................................... 13
SECTION 5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS... 13
SECTION 5.5 SIGNATURE ON RETURNS; OTHER TAX MATTERS..................................................... 13
ARTICLE VI THE OWNER TRUSTEE..................................................................................... 13
SECTION 6.1 DUTIES OF OWNER TRUSTEE..................................................................... 13
SECTION 6.2 RIGHTS OF OWNER TRUSTEE..................................................................... 14
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SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES............................................................. 15
SECTION 6.4 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS............................................... 16
SECTION 6.5 FURNISHING OF DOCUMENTS..................................................................... 17
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE............................................. 17
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL................................................................. 18
SECTION 6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES................................................ 18
SECTION 6.9 COMPENSATION AND INDEMNITY.................................................................. 18
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE................................................................ 19
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE.................................................... 20
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE............................................... 20
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.................................................. 21
ARTICLE VII TERMINATION OF TRUST AGREEMENT....................................................................... 22
SECTION 7.1 TERMINATION OF TRUST AGREEMENT.............................................................. 22
ARTICLE VIII AMENDMENTS.......................................................................................... 23
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR NOTEHOLDERS............................. 23
SECTION 8.2 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND NOTEHOLDERS............................... 23
SECTION 8.3 FORM OF AMENDMENTS.......................................................................... 24
ARTICLE IX MISCELLANEOUS......................................................................................... 24
SECTION 9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE........................................................ 24
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS............................................................. 24
SECTION 9.3 DERIVATIVE ACTIONS.......................................................................... 25
SECTION 9.4 NOTICES..................................................................................... 25
SECTION 9.5 SEVERABILITY................................................................................ 25
SECTION 9.6 COUNTERPARTS................................................................................ 25
SECTION 9.7 SUCCESSORS AND ASSIGNS...................................................................... 25
SECTION 9.8 NO PETITION................................................................................. 25
SECTION 9.9 NO RECOURSE................................................................................. 26
SECTION 9.10 HEADINGS.................................................................................... 26
SECTION 9.11 GOVERNING LAW............................................................................... 26
SECTION 9.12 INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER........................................ 26
SECTION 9.13 EFFECT OF AMENDMENT AND RESTATEMENT......................................................... 27
EXHIBIT A Form of Certificate
EXHIBIT B Certificate of Trust
EXHIBIT C Form of Undertaking Letter
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TRUST AGREEMENT, dated as of June 2, 2005, between CAPITAL AUTO
RECEIVABLES, INC., a Delaware corporation, as Seller, and DEUTSCHE BANK TRUST
COMPANY DELAWARE, a Delaware banking corporation, as trustee and not in its
individual capacity (the "Owner Trustee").
WHEREAS, the Seller and Owner Trustee previously entered into a
certain trust agreement dated May 23, 2005 (the "Original Trust Agreement"),
which contemplated this Trust Agreement.
WHEREAS, the Seller and the Owner Trustee desire hereby to amend and
restate the Original Trust Agreement in its entirety.
NOW THEREFORE, the Seller and the Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Servicing Agreement of even date herewith, among the Seller,
the Servicer and the Trust (the "Trust Sale and Servicing Agreement"). All
references herein to "the Agreement" or "this Agreement" are to this Trust
Agreement, and all references herein to Articles, Sections and subsections are
to Articles, Sections and subsections of this Agreement unless otherwise
specified. The rules of construction set forth in Part II of such Appendix shall
be applicable to this Agreement.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The Trust created hereby shall be known as "Capital Auto
Receivables Asset Trust 2005-1" in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust. The Owner
Trustee is hereby authorized to file the Certificate of Trust on behalf of the
Trust pursuant to Section 3810(a) of the Statutory Trust Act.
Section 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificateholders and
the Seller.
Section 2.3 Purposes and Powers. The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the following activities:
(a) to acquire, manage and hold the Receivables;
(b) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or exchange the
Notes and the Certificates;
(c) to acquire certain property and assets from the Seller on the
Closing Date pursuant to the Trust Sale and Servicing Agreement and any other
Further Transfer and
Servicing Agreements, to make payments to the Noteholders and the
Certificateholders, to make deposits into and withdrawals from the Reserve
Account and to pay the organizational, start-up and transactional expenses of
the Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of this Agreement and
the Trust Sale and Servicing Agreement any portion of the Trust Estate released
from the lien of, and remitted to the Trust pursuant to, the Indenture;
(e) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(f) to enter into interest rate swaps and caps and other derivative
instruments in connection with the Offered Certificates and the Offered Notes;
(g) to enter into interest rate swaps and caps and other derivative
instruments in connection with the Retained Certificates;
(h) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(i) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of the
Owner Trust Estate and the making of distributions to the Securityholders.
The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
Section 2.4 Appointment of Owner Trustee. The Seller hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
Section 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
sold, assigned, transferred, conveyed and set over to the Owner Trustee, as of
May 23, 2005, the sum of $1. The Owner Trustee hereby acknowledges receipt in
trust from the Seller, as of May 23, 2005, of the foregoing contribution, which
constituted the initial Owner Trust Estate. The Seller shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
Section 2.6 Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate (in the name of the Trust and not in the
Owner Trustee's name for the Trust, except as required by, and in accordance
with, Section 2.8) in trust upon and subject to the conditions set forth herein
for the use and benefit of the Certificateholders, subject to the obligations of
the Trust under the Basic Documents. It is the intention of the parties hereto
that
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the Trust constitute a statutory trust under the Statutory Trust Act, that this
Agreement constitute the governing instrument of such statutory trust and that
the Certificates represent the beneficial interests therein. The rights of the
Certificateholders shall be determined as set forth herein and in the Statutory
Trust Act and the relationship between the parties hereto created by this
Agreement shall not constitute indebtedness for any purpose. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Statutory Trust Act with respect to accomplishing the
purposes of the Trust.
Section 2.7 Liability of the Certificateholders. Certificateholders and
holders of beneficial interests therein shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of Delaware.
Section 2.8 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be transferred to and vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be. Any such trustee shall
take such part of the Owner Trust Estate subject to the security interest of the
Indenture Trustee therein established under the Indenture. Such trustee's
acceptance of its appointment shall constitute acknowledgment of such security
interest and shall constitute a Grant to the Indenture Trustee of a security
interest in all property held by such trustee. Any such trustee shall prepare
and file all such financing statements naming such trustee as debtor that are
necessary or advisable to perfect, make effective or continue the lien and
security interest of the Indenture Trustee.
Section 2.9 Situs of Trust. The Trust shall be located and administered in
the States of Delaware or New York. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments shall be made by the Trust only from Delaware or New York. The only
office of the Trust shall be the Corporate Trust Office in Delaware.
Section 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted and had
at all relevant times, and now has, power, authority and legal right to acquire
and own the Receivables contemplated to be transferred to the Trust pursuant to
the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
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(c) The Seller has the power and authority to execute and deliver
this Agreement and any other Basic Documents to which the Seller is a party and
to carry out its terms, the Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer as
part of the Trust and the Seller has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and any other Basic Documents to which the Seller is a party, and the
fulfillment of the terms of this Agreement and any other Basic Documents to
which the Seller is a party do not conflict with, result in any breach of any of
the terms and provisions of or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to which the Seller is a
party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents), or
violate any law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or any of its properties.
Section 2.11 Tax Treatment. As long as the Seller is the sole owner of the
Certificates, the Seller and Owner Trustee, by entering into this Agreement, (a)
express their intention that the Trust will be disregarded for federal income
tax purposes and will be treated as a division of the Seller and (b) agree that
Section 5.5 of this Agreement will not be applicable. If the Seller is not the
sole owner of the Certificates, through sale of the Certificates, issuance by
the Trust of additional Certificates to a Person other than the Seller or
otherwise, the Seller and the Owner Trustee, by entering into this Agreement,
and the Certificateholders, by acquiring any Certificates or interest therein,
(i) express their intention that the Certificates will qualify as equity
interests in either (A) a division of the Seller, or any other single Person,
disregarded as a separate entity for federal income tax purposes if all
Certificates are owned solely by the Seller or by such single Person, or (B) a
partnership for federal income tax purposes if the Certificates are owned by
more than one Person and (ii) unless otherwise required by the appropriate
taxing authorities, agree to treat the Certificates as equity interests in an
entity as described in clause (i) of this Section 2.11 for the purposes of
federal income taxes, state and local income and franchise taxes, Michigan
single business tax, and any other taxes imposed upon, measured by, or based
upon gross or net income. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with such
characterization of the Trust for such tax purposes.
ARTICLE III
THE CERTIFICATES
Section 3.1 Initial Certificate Ownership. As of the formation of the
Trust by the contribution by the Seller pursuant to Section 2.5, the Seller has
been the sole Certificateholder.
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Section 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form of Exhibit
A. The Certificates shall represent the entire beneficial interest in the Trust.
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of a Responsible Officer of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be duly issued, fully paid and non-assessable beneficial interests
in the Trust, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(b) The Certificates shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) all as determined by the officers executing such Certificates,
as evidenced by their execution of such Certificates. The Certificates shall be
fully registered.
(c) The Certificates shall be issued in fully-registered form. The
terms of the Certificates set forth in Exhibit A shall form part of this
Agreement.
Section 3.3 Execution, Authentication and Delivery. Concurrently with the
sale of the Receivables to the Trust pursuant to the Trust Sale and Servicing
Agreement, the Owner Trustee shall cause a single Certificate representing the
entire beneficial interest in the Trust to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Seller, signed
by its chairman of the board, its president or any vice president, without
further corporate action by the Seller. Such Certificate shall be issued to and
held by the Seller, as the initial Certifiateholder. No Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or Deutsche Bank Trust Company Americas, as the Owner Trustee's
authenticating agent, by manual signature. Such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. Deutsche Bank Trust Company
Americas shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Certificate
Registrar.
(b) The initial Certificateholder may at any time, without consent
of the Noteholders, sell, transfer, convey or assign in any manner its rights to
and interests in the Certificates (including its right to distributions from the
Reserve Account), provided that: (i)
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such action will not result in a reduction or withdrawal of the rating of any
class of Notes, (ii) the Certificateholder provides to the Owner Trustee and the
Indenture Trustee an opinion of independent counsel that such action will not
cause the Trust to be treated as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes, (iii) such transferee
or assignee agrees to take positions for tax purposes consistent with the tax
positions agreed to be taken by the Certificateholder, (iv) the conditions set
forth in Section 3.4(g) have been satisfied. In addition, no transfer of a
Certificate shall be registered unless the transferee shall have provided to the
Owner Trustee and the Certificate Registrar an opinion of counsel that in
connection with such transfer no registration of the Certificates is required
under the Securities Act or applicable state law or that such transfer is
otherwise being made in accordance with all applicable federal and state
securities laws and (v) in connection with any transfer of less than all of the
interests in the Certificates, the transferor and the transferee shall specify
the respective interests in the Certificates to be held by transferor and
transferee, which interests may be determined by a formula or on any other basis
agreed by transferor and transferee. If agreed by transferor and transferee,
different interests may be used for distributions of proceeds and for purposes
of voting the Certificates. The transferor shall notify the Owner Trustee of
such agreement in connection with such transfer.
(c) In the event that the Seller is no longer the sole
Certificateholder, the Administrator will promptly prepare amendments (subject
to the provisions regarding amendments in the applicable Basic Documents) to the
Basic Documents to the extent necessary to reflect the establishment of the
Certificate Distribution Account and the making of Distributions to the
Certificateholders and such other matters as shall be agreed between the Seller
and the Owner Trustee. The expense of the foregoing amendments shall be paid by
the Administrator.
(d) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.8, the Owner Trustee
shall execute on behalf of the Trust, authenticate and deliver (or shall cause
Deutsche Bank Trust Company Americas as its authenticating agent to authenticate
and deliver), in the name of the designated transferee or transferees, one or
more new Certificates in authorized denominations of a like aggregate amount
dated the date of authentication by the Owner Trustee or any authenticating
agent.
(e) At the option of a Holder, Certificates may be exchanged for
other Certificates of authorized denominations of a like aggregate principal
amount upon surrender of the Certificates to be exchanged at the Corporate Trust
Office maintained pursuant to Section 3.8. Whenever any Certificates are so
surrendered for exchange, the Owner Trustee shall execute on behalf of the
Trust, authenticate and deliver (or shall cause Deutsche Bank Trust Company
Americas as its authenticating agent to authenticate and deliver) one or more
Certificates dated the date of authentication by the Owner Trustee or any
authenticating agent. Such Certificates shall be delivered to the Holder making
the exchange.
(f) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing and such other
documents and instruments as may be required by Section 3.4(b). Each Certificate
surrendered for registration of transfer or exchange shall be canceled
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and subsequently destroyed or otherwise disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(g) The Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed and any other expenses of the Owner Trustee in connection with any
transfer or exchange of Certificates.
(h) The Certificates may not be acquired by or for the account of
(i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (each, a "Benefit Plan").
By accepting and holding a Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Owner Trustee and the Trust
such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Certificate has been acquired by a protected purchaser,
the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee
shall authenticate and deliver (or shall cause Deutsche Bank Trust Company
Americas as its authenticating agent to authenticate and deliver), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate in authorized denominations of a like aggregate
principal amount; provided, however, that if any such destroyed, lost or stolen
Certificate, but not a mutilated Certificate, shall have become or within seven
(7) days shall be due and payable, then instead of issuing a replacement
Certificate the Owner Trustee may pay such destroyed, lost or stolen Certificate
when so due or payable.
(b) If, after the delivery of a replacement Certificate or payment
in respect of a destroyed, lost or stolen Certificate pursuant to Section
3.5(a), a protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (and any distributions or payments made with respect thereto) or
such payment from the Person to whom it was delivered or any Person taking such
replacement Certificate from such Person to whom such replacement Certificate
was delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee may require the payment by the Holder
of such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
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(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional beneficial interest in the Trust, whether or
not the mutilated, destroyed, lost or stolen Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.6 Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate shall
be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
Section 3.7 Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within fifteen (15) days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Seller in writing, a list of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Holder, by receiving and holding a Certificate, shall be deemed to have agreed
not to hold any of the Servicer, the Seller or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 3.8 Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in the Borough of Manhattan, the City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the offices of Deutsche Bank Trust Company
Americas, 60 Wall Street, New York, NY 10005, as its principal office for such
purposes. The Owner Trustee shall give prompt written notice to the Seller, to
the Servicer and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 3.9 Appointment of Paying Agent. Except as otherwise provided in
Section 5.2, the Paying Agent shall make distributions to Certificateholders
from the Certificate Distribution Account pursuant to Section 5.2 and shall
report the amounts of such distributions to the Owner Trustee and the Servicer;
provided that no such reports shall be required so long as the Seller is the
sole Certificateholder. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be Deutsche Bank Trust Company Americas, and any co-paying agent chosen by
Deutsche Bank Trust Company Americas, and acceptable to the Owner Trustee.
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Deutsche Bank Trust Company Americas shall be permitted to resign as Paying
Agent upon thirty (30) days' written notice to the Owner Trustee. If Deutsche
Bank Trust Company Americas shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent, certificate registrar or
authenticating agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 3.10 [Reserved.]
Section 3.11 [Reserved.]
Section 3.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency and shall have no further obligation to the Certificate Owners.
Section 3.13 Definitive Certificates. Fully registered definitive
Certificates representing a beneficial interest in the Certificates ("Definitive
Certificates") may be issued to the Seller. Definitive Certificates shall be
issued in the form set forth in Exhibit A-1. In addition to the extent (a) the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Certificates and the Administrator is unable to locate a
qualified successor, (b) the Administrator at its option advises the Owner
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (c) after the occurrence of an Event of Default or a
Servicer Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Voting Interests advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Certificate Owners,
then the Clearing Agency shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the printed Certificate or Certificates
representing the Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions, the Owner Trustee shall execute and authenticate the
Definitive Certificates in accordance with the instructions of the Clearing
Agency. Neither the Certificate Registrar nor the Owner Trustee shall be liable
for any delay in delivery of such instructions and
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may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Owner Trustee
shall recognize the Holders of the Definitive Certificates as
Certificateholders.
Section 3.14 Seller as Certificateholder. The Seller in its individual or
any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least thirty (30) days and not more than
forty-five (45) days before the taking of such action, and (ii) the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than
an action to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture) and the compromise of any action, claim or lawsuit
brought by or against the Trust (other than an action to collect on a Receivable
or an action by the Indenture Trustee pursuant to the Indenture);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the Certificateholders, to remove the Administrator under the Administration
Agreement pursuant to Section 10 thereof, appoint a successor Administrator
pursuant to Section 10 of the Administration Agreement,
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remove the Servicer under the Trust Sale and Servicing Agreement pursuant to
Section 7.02 thereof or except as expressly provided in the Basic Documents,
sell the Receivables or any interest therein after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholders.
Section 4.3 Action by Certificateholders with Respect to Bankruptcy.
Notwithstanding any prior termination of this Agreement, the Owner Trustee shall
not have the power to commence a voluntary proceeding in bankruptcy relating to
the Trust without the unanimous prior approval of all Certificateholders
(including the Seller) and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent; provided, however, that under
no circumstances shall the Owner Trustee commence or join in commencing any such
proceeding prior to the date that is one year and one day after the termination
of the Trust.
Section 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement, including Section 2.3 of
this Agreement, or any of the Basic Documents, nor shall the Owner Trustee be
obligated to follow any such direction, if given. The Certificateholders shall
not and shall not direct the Owner Trustee to take action that would violate the
provisions of Section 6.1 and, if given, the Owner Trustee shall not be
obligated to follow any such direction.
Section 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests as of the close of
the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Voting Interests at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account.
(a) Except as otherwise provided in Section 5.2, the Servicer, for
the benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Deposit Account known as the Capital Auto Receivables
Asset Trust 2005-1 Certificate Distribution Account (the "Certificate
Distribution Account"), bearing an additional designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders.
(b) The Trust shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein, in the
Indenture or in the Trust Sale and Servicing
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Agreement, the Certificate Distribution Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders. If,
at any time, the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Owner Trustee (or the Servicer on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the Owner
Trustee or an Affiliate thereof) shall within ten (10) Business Days (or such
longer period, not to exceed thirty (30) calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
Section 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall distribute to
the Certificateholders, on a pro rata basis, amounts equal to the amounts
deposited in the Certificate Distribution Account pursuant to Sections 4.06 and
4.07 of the Trust Sale and Servicing Agreement on or prior to such Distribution
Date. Notwithstanding the foregoing or anything else to the contrary in this
Agreement or the other Basic Documents, if and for so long as Certificates
representing in the aggregate a 100% beneficial interest in the Trust are held
by the Seller, (i) no Certificate Distribution Account shall be required to be
established or maintained and (ii) all distributions and payments on the
Certificates (including the final distribution as contemplated by Section 7.1(c)
hereof) required hereunder or under the Trust Sale and Servicing Agreement shall
be made directly to the Seller by the Indenture Trustee (whether or not the
Trust Sale and Servicing Agreement otherwise contemplates deposit into the
Certificate Distribution Account) and the Owner Trustee shall have no duty or
liability to see to such distribution.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 4.09(a) of the Trust Sale and Servicing Agreement on such
Distribution Date; provided that no such statement shall be required to be sent
by the Owner Trustee if and for so long as the Seller is the sole
Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2; provided that the Owner Trustee shall not have an obligation to withhold
any such amount if and for so long as the Seller is the sole Certificateholder.
The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this Section 5.2(c). If a Certificateholder wishes to
apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
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(d) If the Indenture Trustee holds escheated funds for payment to
the Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall,
upon notice from the Indenture Trustee that such funds exist, submit on behalf
of the Trust an Issuer Order to the Indenture Trustee pursuant to Section 3.3(e)
of the Indenture instructing the Indenture Trustee to pay such funds to or at
the order of the Seller.
Section 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefore, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five (5) Business Days prior to such Record Date
or if not, by check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
Section 5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others. The Owner Trustee shall maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, deliver to each Certificateholder, as may be required by
the Code and applicable Treasury Regulations or otherwise, such information as
may be required to enable each Certificateholder to prepare its federal income
tax return, file such tax returns relating to the Trust and make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as an entity described in clause (a) of Section 2.11
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. In the event that the Internal Revenue
Service were to contend successfully that the Trust is not a disregarded entity
but is rather a partnership for federal income tax purposes, the Trust shall
allocate items of income, gain, deduction and loss to the partners of the Trust
in accordance with their economic interests in the Trust. With respect to
interest expense of the Trust, the Trust shall allocate to the
Certificateholders their share of the entire amount of such interest expense.
Section 5.5 Signature on Returns; Other Tax Matters. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller. To the extent one may be
required, the Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
ARTICLE VI
THE OWNER TRUSTEE
Section 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Agreement and the other Basic
Documents, including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic
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Documents and in accordance with the provisions of this Agreement. No implied
covenants or obligations shall be read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 6.1(d) shall not limit the effect of Section
6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved that
the Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Trust Sale and Servicing Agreement and may be deposited
under such general conditions as may be prescribed by law, and the Owner Trustee
shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.1.
Section 6.2 Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is
14
further authorized from time to time to take such action as the Administrator
recommends and directs in writing with respect to the Basic Documents.
Section 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Deutsche Bank Trust
Company Delaware acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in Section 6.6 and expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or
liability for, or with respect to, the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for, or with respect to, the sufficiency of the
Owner Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or to Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Seller or the Servicer with
any warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Administrator, the Trustee or the Servicer or any sub-servicer taken in the
name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Basic Document, if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
15
(e) the Owner Trustee shall not be responsible for or in respect of
and makes no representation as to the validity or sufficiency of any provision
of this Agreement other than as explicitly set forth herein or for the due
execution hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for, or in
respect of, the validity or sufficiency of the Basic Documents, the Notes, the
Certificates (other than the certificate of authentication on the Certificates)
or of any Receivables or any related documents, and the Owner Trustee shall in
no event assume or incur any liability, duty or obligation to any Noteholder or
to any Certificateholder, other than as expressly provided for herein and in the
Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to be performed by
the Administrator under the Administration Agreement, the Indenture Trustee
under the Indenture or the Servicer under the Pooling and Servicing Agreement or
the Trust Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or direction of any
of the Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be construed as
a duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
(h) Notwithstanding anything to the contrary contained herein or in
any other Basic Document, the Owner Trustee shall not be required to execute,
deliver or certify on behalf of the Trust or any other Person any filings,
certificates, affidavits or other instruments required under the Sarbanes-Oxley
Act of 2002. Notwithstanding any Person's right to instruct the Owner Trustee,
neither the Owner Trustee nor any agent, employee, director or officer of the
Owner Trustee shall have any obligation to execute any certificates or other
documents required pursuant to the Sarbanes-Oxley Act of 2002 or the rules and
regulations promulgated pursuant thereto, and the refusal to comply with any
such instructions shall not constitute a default or breach under any Basic
Document. In the event that the Owner Trustee, on behalf of the Trust, does not
execute, deliver or certify any filings, certificates, affidavits or other
instruments required under the Sarbanes-Oxley Act of 2002, an Officer of the
Administrator shall, on behalf of the Trust, execute, deliver or make such
certification.
Section 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
16
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instructions
within ten (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 which is consistent, in its view, with this Agreement or the
Basic Documents, and as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for any such action or inaction.
Section 6.5 Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation. It has
satisfied the eligibility requirements set forth in Section 6.13.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the Owner Trustee or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to the
Owner Trustee or any of its assets, (ii) shall not violate any provision of the
corporate charter or by-laws of the Owner Trustee or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a materially
adverse effect on the
17
Owner Trustee's performance or ability to perform its duties as Owner Trustee
under this Agreement or on the transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
Section 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties and
need not investigate any fact or matter in any such document. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee may act directly or through its agents, attorneys,
custodians or nominees (including the granting of a power of attorney to
officers of Deutsche Bank Trust Company Americas to execute and deliver any
Basic Documents, Certificate, Note or other documents related thereto on behalf
of the Owner Trustee) pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees if such agents, attorneys, custodians
or nominees shall have been selected by the Owner Trustee with reasonable care;
and may consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
Section 6.8 Owner Trustee May Own Certificates and Notes. Deutsche Bank
Trust Company Delaware or any successor Owner Trustee in its individual or any
other capacity may become the owner or pledgee of Certificates or Notes and may
deal with the Seller, the Administrator, the Indenture Trustee and the Servicer
in transactions in the same manner as it would have if it were not the Owner
Trustee.
Section 6.9 Compensation and Indemnity. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the
18
date hereof between the Servicer and the Owner Trustee, and the Owner Trustee,
any paying agent, registrar, authenticating agent or co-trustee shall be
entitled to be reimbursed by the Servicer for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, custodians, nominees, representatives, experts and external counsel
as the Owner Trustee may employ in connection with the exercise and performance
of its rights and its duties hereunder. The Servicer shall indemnify the Owner
Trustee, any paying agent, registrar, authenticating agent or co-trustee and its
successors, assigns, agents and servants in accordance with the provisions of
Section 6.01 of the Trust Sale and Servicing Agreement. The indemnities
contained in this Section 6.9 shall survive the resignation or removal of the
Owner Trustee or the termination of this Agreement. Any amounts paid to the
Owner Trustee pursuant to this Article VI shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
Section 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by giving notice thereof to the
Administrator provided that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in Section 6.10(c).
If no successor Owner Trustee shall have been appointed pursuant to Section
6.10(b) and have accepted such appointment within thirty (30) days after the
giving of such notice, the Owner Trustee giving such notice may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee. The Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be appointed or
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any reason the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate (one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee)
and shall pay all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
6.10 shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator and all fees
and expenses due to the outgoing Owner Trustee are paid. Any successor Owner
Trustee appointed pursuant to this Section 6.10 shall be eligible to act in such
19
capacity in accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The Administrator shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
Section 6.11 Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate or any Financed Vehicle may at the time
be located, the Administrator and the Owner Trustee acting jointly shall, at the
expense of the Servicer, have the power and shall, at the expense of the
Servicer, execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner
Trust Estate, and to vest in such Person (in the name of the Trust and not in
such Person's name for the Trust, except to the extent otherwise required by,
and in accordance with, Section 2.8), in such capacity, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 6.12,
such powers, duties, obligations, rights and trusts as the Administrator and the
Owner Trustee may consider necessary or desirable. If the Administrator shall
not have joined in such appointment within 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 6.13 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 6.10.
20
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times satisfy the requirement of Section 26(a)(1) of the Investment
Company Act. The Owner Trustee shall at all times: (a) be a corporation
satisfying the provisions of Section 3807(a) of the Statutory Trust Act; (b) be
authorized to exercise corporate trust powers; (c) have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination by
federal or state authorities; and (d) have (or have a parent which has) a
long-term unsecured debt rating of at least BBB- by Standard & Poor's Ratings
Services and at least Baa3 by Moody's Investors Service, Inc. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
21
authority, then for the purpose of this Section 6.13, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.13, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate in accordance with Section 3808 of the Statutory Trust Act and be of
no further force or effect on the final distribution by the Owner Trustee of all
monies or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Trust Sale and Servicing Agreement
(including the exercise by the Servicer of its option to purchase the
Receivables pursuant to Section 8.01(a) of the Trust Sale and Servicing
Agreement), the Interest Rate Swaps and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or the Trust, (y) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Neither the Seller nor any Certificateholder shall be entitled
to revoke or terminate the Trust or this Agreement.
(c) Subject to Section 5.2(a), notice of any termination of the
Trust, specifying the Distribution Date upon which the Certificateholders shall
surrender their Certificates to the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 8.01(c) of the
Trust Sale and Servicing Agreement, stating: (i) the Distribution Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying Agent
therein designated; (ii) the amount of any such final payment; and (iii) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice referred to in Section 7.1(c), the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been
22
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable laws with respect to escheat of
funds, any funds remaining in the Trust after exhaustion of such remedies in the
preceding sentence shall be deemed property of the Seller and distributed by the
Owner Trustee to the Seller, and the Owner Trustee shall have no further
liability to the Certificateholders with respect thereto.
(e) Upon the winding up and termination of the Trust in accordance
with Section 3808 of the Statutory Trust Act and this Section, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Statutory Trust Act.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or any other Persons who may be
Certificateholders (but with prior notice to each of the Rating Agencies), to
(i) cure any ambiguity, (ii) correct or supplement any provision in this
Agreement that may be defective or inconsistent with any other provision in this
Agreement or any other Basic Document, (iii) add or supplement any credit
enhancement for the benefit of the Noteholders or Certificateholders (provided
that if any such addition shall affect any class of Noteholders or
Certificateholders differently than any other class of Noteholders or
Certificateholders, then such addition shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any class of
the Noteholders or Certificateholders), (iv) add to the covenants, restrictions
or obligations of the Seller or the Owner Trustee, (v) evidence and provide for
the acceptance of the appointment of a successor trustee with respect to the
Owner Trust Estate and add to or change any provisions as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee
pursuant to Article VI, and (vi) add, change or eliminate any other provision of
this Agreement in any manner that shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the
Noteholders or Unaffiliated Certificateholders.
Section 8.2 Amendments With Consent of Certificateholders and Noteholders.
This Agreement may be amended from time to time by the Seller and the Owner
Trustee with the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and, if any Person other than the Seller or an Affiliate of
the Seller holds any Certificates, the consent of Certificateholders whose
Certificates evidence not less than a majority of the Voting Interest as of the
close of the preceding Distribution Date (which consent, whether given pursuant
to this Section 8.2 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such Notes
or Certificates and of any Notes or Certificates issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Notes or Certificates) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the Noteholders
or the
23
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made on any Note or Certificate, the Pass Through Rate or the Specified
Reserve Account Balance or (b) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the holders of all Notes
and all the Voting Interests with respect to Certificates then outstanding. The
Owner Trustee shall furnish notice to each of the Rating Agencies prior to
obtaining consent to any proposed amendment under this Section 8.2.
Section 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each Unaffiliated
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Unaffiliated Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Unaffiliated Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(c) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 9.2 Limitations on Rights of Others. Except for Section 9.13, the
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Seller, the Certificateholders, the Administrator and, to the extent
expressly provided herein, the Indenture
24
Trustee and the Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 9.3 Derivative Actions. Any provision contained herein to the
contrary notwithstanding, the right of any Certificateholder to bring a
derivative action in the right of the Trust is hereby made expressly subject to
the following limitations and requirements:
(a) such Certificate Owner must meet all requirements set forth in
the Statutory Trust Act; and
(b) no Certificateholder may bring a derivative action in the right
of the Trust without the prior written consent of Certificate Holders owning a
beneficial interest in the Certificates representing 50% of the then outstanding
interest in the Certificates.
Section 9.4 Notices. All demands, notices and communications upon or to
the Seller, the Servicer, the Administrator, the Indenture Trustee, the Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in Appendix B to the Trust Sale and Servicing Agreement.
Section 9.5 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the holders
thereof.
Section 9.6 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
Section 9.7 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the Owner
Trustee and each Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
Section 9.8 No Petition. The Owner Trustee by entering this Trust
Agreement and each Certificateholder or Certificate Owner, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenant and agree
that they shall not (nor shall they join with or solicit another person to),
prior to the day that is one year and one day after the termination of the Trust
and of each other trust heretofore formed by the Seller, acquiesce, petition or
otherwise invoke or cause the Seller or the Trust to invoke in any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Trust.
25
Section 9.9 No Recourse. Each Certificateholder by accepting a Certificate
(or any interest therein) acknowledges that such Person's Certificate (or
interest therein) represents beneficial interests in the Trust only and does not
represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents. Except as expressly provided
in the Basic Documents, none of the Seller, the Servicer or the Owner Trustee in
their respective individual capacities, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, or shall recourse be had to any of them for the
distribution of any amount with respect to the Certificates or the Trust's
performance of, or omission to perform, any obligations or indemnifications
contained in the Certificates, this Agreement or the Basic Documents, it being
expressly understood that such Certificateholder obligations have been made
solely by the Trust. Each Certificateholder by the acceptance of a Certificate
(or beneficial interest therein) agrees except as expressly provided in the
Basic Documents, in the event of nonpayment of any amounts with respect to the
Certificates, it shall have no claim against any of the foregoing Persons for
any deficiency, loss or claim therefrom. In the event that any of the foregoing
covenants of each Certificateholder and Certificate Owner is prohibited by, or
declared illegal or otherwise unenforceable against any such Certificateholder
or Certificate Owner under applicable law by any court or other authority of
competent jurisdiction, and, as a result, a Certificateholder or Certificate
Owner is deemed to have an interest in any assets of the Seller or any Affiliate
of the Seller other than the Trust ("other assets"), each Certificateholder and
Certificate Owner agrees that (i) its claim against any such other assets shall
be, and hereby is, subject and subordinate in all respects to the rights of
other Persons to whom rights in the other assets have been expressly granted
("entitled Persons"), including to the payment in full of all amounts owing to
such entitled Persons, and (ii) the covenant set forth in the preceding clause
(i) constitutes a "subordination agreement" within the meaning of, and subject
to, Section 510(a) of the Bankruptcy Code.
Section 9.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 9.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.12 Indemnification by and Reimbursement of the Servicer. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with Section 6.03(b) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section 3.04 of the Trust Sale
and Servicing Agreement. The Owner Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation
26
to indemnify, defend and hold the Owner Trustee harmless as set forth in Section
6.01(a)(iv) of the Trust Sale and Servicing Agreement.
Section 9.13 Effect of Amendment and Restatement. It is the intent of the
parties hereto that this Trust Agreement shall as of June 2, 2005, replace in
its entirety the Original Trust Agreement; provided, that with respect to the
period of time from May 23, 2005 through June 2, 2005, the rights and
obligations of the parties shall be governed by the Original Trust Agreement;
provided further, that the amendment and restatement of the Original Trust
Agreement shall not affect any of the grants, conveyances or transfers
contemplated by the Original Trust Agreement to have occurred prior to the date
hereof.
* * * * *
27
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
as Owner Trustee
By: /s/ Elizabeth B. Ferry
----------------------------------
Name: Elizabeth B. Ferry
Title: Assistant Vice President
CAPITAL AUTO RECEIVABLES, INC.
By: /s/ Nancy L. Bugg
----------------------------------
Name: Nancy L. Bugg
Title: Vice President
Acknowledged and Accepted:
DEUTSCHE BANK TRUST
COMPANY AMERICAS
as Paying Agent
By: /s/ Eva Aryeetey
----------------------------
Name: Eva Aryeetey
Title: Attorney-In-Fact
EXHIBIT A
FORM OF CERTIFICATE
NUMBER R- $____________
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND THE VARIOUS STATE SECURITIES LAWS. NO TRANSFER
OF THIS CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS MADE IN A
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE ACT OR ANY
APPLICABLE STATE SECURITIES LAWS AND IS OTHERWISE IN COMPLIANCE WITH THE
RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT.
THIS CERTIFICATE (OR AN INTEREST HEREIN) MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF
THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA,
(ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE,
OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND ANY RELATED CERTIFICATE OWNER SHALL
EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT
PLAN AND, IF REQUESTED TO DO SO BY THE SELLER, SUCH PERSON SHALL EXECUTE
AND DELIVER TO THE OWNER TRUSTEE AN UNDERTAKING LETTER TO SUCH EFFECT IN
THE FORM SPECIFIED IN THE TRUST AGREEMENT.
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-1
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail instalment sale contracts
and direct
purchase money loans secured by new or used automobiles and light trucks
and sold to the Trust by Capital Auto Receivables, Inc.
(This Certificate does not represent an interest in or obligation of
Capital Auto Receivables, Inc., General Motors Acceptance Corporation or
General Motors Corporation or any of their respective affiliates, except
to the extent described in the Basic Documents.)
THIS CERTIFIES THAT _____________________. is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in Capital Auto
Receivables Asset Trust 2005-1 (the "Trust") formed by Capital Auto Receivables,
Inc., a Delaware corporation.
The Trust was created pursuant to a trust agreement, dated as of May
23, 2005 (as amended and supplemented as of June 2, 2005 from time to time, the
"Trust Agreement"), between the Seller and Deutsche Bank Trust Company Delaware,
as owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as Asset Backed Certificates (the "Certificates"). This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, the terms of which are incorporated herein by reference and
made a part hereof, to which Trust Agreement the holder of this Certificate by
virtue of the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the 15th
day of each month or, if such 15th day is not a Business Day, the next Business
Day, commencing on June 15, 2005 (each, a "Distribution Date"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such amount as is provided in the Basic Documents. The "Record Date,"
with respect to any Distribution Date, means the last day of the preceding
Monthly Period.
The distributions in respect of this Certificate are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Trust with respect to this Certificate shall be applied in respect of this
Certificate.
The holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are subordinated
to the rights of the Noteholders as and to the extent described in the Trust
Sale and Servicing Agreement.
It is the intent of the Seller, the Owner Trustee and the
Certificateholders that, for purposes of federal income, state and local income
and franchise taxes, Michigan single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, the Trust shall be treated
as either (A) a division of the Seller, or any other single Person, and
disregarded as a separate entity, if all Certificates are owned solely by the
Seller or by such single Person, or (B) a partnership if the Certificates are
owned by more than one Person. Except as otherwise required by appropriate
taxing authorities, the Seller and the other Certificateholders by
2
acceptance of a Certificate agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
such a disregarded entity or partnership as described in the previous sentence.
This Certificate (or an interest therein) may not be acquired by or
for the account of (i) an "employee benefit plan" (as defined in Section 3(3) of
the United States Employee Retirement Income Security Act of 1974, as amended,
("ERISA"), that is subject to the provisions of Title I of ERISA, (ii) a "plan"
described in Section 4975(e)(1) of the Internal Revenue Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity.
Each Certificateholder or Certificate Owner by its acceptance of a
Certificate (or an interest therein) covenants and agrees that such
Certificateholder shall not, prior to the date which is one year and one day
after the termination of the Trust, acquiesce, petition or otherwise invoke or
cause the Seller or the Owner Trustee to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller or the Owner Trustee under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Owner Trustee or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Seller or the Owner Trustee.
Except as otherwise provided in the Trust Agreement, distributions
on this Certificate shall be made as provided in the Trust Agreement by the
Owner Trustee by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate shall be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee in
the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Trust Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, 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 Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Certificate to be duly executed.
Dated: June 2, 2005 CAPITAL AUTO RECEIVABLES ASSET
TRUST 2005-1
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as Owner Trustee
By: ____________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
DEUTSCHE BANK TRUST COMPANY OR DEUTSCHE BANK TRUST COMPANY DELAWARE,
DELAWARE, not in its individual capacity but solely
not in its individual capacity as Owner Trustee
but solely as Owner Trustee by Deutsche Bank Trust Company Americas,
as Authenticating Agent
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
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REVERSE OF CERTIFICATE
The Certificate does not represent an obligation of, or an interest
in, the Seller, the Servicer, General Motors Corporation, the Indenture Trustee,
the Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Receivables (and certain other amounts), all as
more specifically set forth herein and in the Basic Documents. A copy of each of
the Basic Documents may be examined during normal business hours at the
principal office of the Seller, and at such other places, if any, designated by
the Seller, by any Certificateholder upon written request. In the event of any
conflict between the terms of this Certificate and the terms of the Basic
Documents, the terms of the Basic Documents shall govern.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholders under the
Trust Agreement at any time by the Seller and the Owner Trustee with the consent
of the Holders of the Notes evidencing not less than a majority of the
Outstanding Amount of the Notes as of the close of the preceding Distribution
Date and the consent of Certificateholders whose Certificates evidence not less
than a majority of the Voting Interests as of the close of the preceding
Distribution Date. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain circumstances, without the consent of the Holders of any of
the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is Deutsche Bank Trust Company Americas, New
York, New York.
The Certificate is issuable only as a registered Certificate. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, the Certificate is exchangeable for a new Certificate. No service charge
shall be made for any such registration of transfer or exchange, but the Owner
Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as
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the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate in accordance with Article VII of
the Trust Agreement.
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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.
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 2005-1
THIS Certificate of Trust of Capital Auto Receivables Asset Trust
2005-1 (the "Trust") is being duly executed and filed by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is Capital Auto
Receivables Asset Trust 2005-1.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are Deutsche Bank Trust Company Delaware, E.A.
Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington,
Delaware 19805-1266.
3. This Certificate of Trust shall be effective on May 23, 2005.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By: ____________________________________
Name:
Title:
EXHIBIT C
UNDERTAKING LETTER
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Deutsche Bank Trust Company Delaware
as Owner Trustee of Capital Auto Receivables Asset Trust 2005-1
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, DE 19805-1266
Ladies and Gentlemen:
In connection with our purchase of record or beneficial ownership of
the ____ Asset Backed Certificate (the "Certificate") of the Capital Auto
Receivables Asset Trust 2005-1, the undersigned purchaser, record owner or
beneficial owner hereby acknowledges, represents and warrants that such
purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Certificate by, or for the
benefit of, (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any entity
whose underlying assets include plan assets by reason of investment by an
employee benefit plan or a plan in such entity; and
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our representations or warranties herein cease to
be accurate and complete.
___________________________________
Name of Certificate Owner
By:________________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________