EXHIBIT 4.C
EXECUTION COPY
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DAIMLERCHRYSLER MASTER OWNER TRUST
TRUST AGREEMENT
dated as of June 1, 2002
between
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Beneficiary and as Transferor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Owner Trustee
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions................................................................................1
Section 1.02 Generic Terms..............................................................................3
ARTICLE II.
ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE; COLLATERAL CERTIFICATE
Section 2.01 Formation of Trust; Name...................................................................3
Section 2.02 Transfer of Property to Trust; Initial Capital Contribution of Trust Estate................3
Section 2.03 Purposes and Powers; Trust To Operate as a Single Purpose Entity...........................3
Section 2.04 Appointment of Owner Trustee...............................................................6
Section 2.05 Declaration of Trust.......................................................................6
Section 2.06 Title to Trust Estate......................................................................6
Section 2.07 Nature of Interest in the Trust Estate.....................................................6
Section 2.08 Creation of Trust; Principal Office of Owner Trustee.......................................6
Section 2.09 Tax Matters................................................................................6
Section 2.10 Fiscal Year................................................................................6
Section 2.11 Transfer of Collateral Certificate.........................................................7
Section 2.12 Closing....................................................................................7
Section 2.13 Books and Records..........................................................................7
Section 2.14 Series 2002-CC Certificateholder...........................................................7
Section 2.15 Representations and Warranties of the Transferor...........................................7
Section 2.16 Protection of Title to Collateral Certificate..............................................8
Section 2.17 Assignment to Indenture Trustee............................................................9
Section 2.18 Merger or Consolidation of, or Assumption of the Obligations of, Transferor................9
Section 2.19 Limitation on Liability of Transferor and Others...........................................9
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01 Representations and Warranties of the Beneficiary.........................................10
ARTICLE IV.
DISTRIBUTIONS OF FUNDS
Section 4.01 Distribution of Funds.....................................................................11
Section 4.02 Payments from Trust Estate Only...........................................................11
Section 4.03 Method of Payment.........................................................................11
Section 4.04 Establishment of Account..................................................................11
ARTICLE V.
DUTIES OF THE OWNER TRUSTEE
Section 5.01 Action Upon Instructions..................................................................11
Section 5.02 No Duty to Act Under Certain Circumstances................................................12
Section 5.03 No Duties Except Under Specified Agreements or Instructions...............................12
Section 5.04 Trust Operation...........................................................................13
Section 5.05 Execution of Documents....................................................................13
Section 5.06 Nonpetition Covenants.....................................................................13
ARTICLE VI.
CONCERNING THE TRUSTEE BANK
Section 6.01 Acceptance of Trust and Duties............................................................14
Section 6.02 Furnishing of Documents...................................................................15
Section 6.03 Representations and Warranties as to the Trust Estate.....................................15
Section 6.04 Signature of Periodic Filings.............................................................15
Section 6.05 Reliance; Advice of Counsel...............................................................15
Section 6.06 Not Acting in Individual Capacity.........................................................15
Section 6.07 Representations and Warranties............................................................15
ARTICLE VII.
TERMINATION OF TRUST AGREEMENT
Section 7.01 Termination of Trust Agreement............................................................16
ARTICLE VIII.
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND SEPARATE OWNER TRUSTEES
Section 8.01 Resignation and Removal of the Owner Trustee; Appointment of Successors...................16
Section 8.02 Transfer Procedures.......................................................................16
Section 8.03 Qualification of Owner Trustee............................................................17
Section 8.04 Co-trustees and Separate Owner Trustees...................................................17
ARTICLE IX.
AMENDMENTS
Section 9.01 Amendments................................................................................17
ARTICLE X.
OWNERSHIP INTEREST
Section 10.01 Ownership Interest; Prohibitions on Transfer.............................................18
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ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses...........................................................19
Section 11.02 Indemnification..........................................................................19
ARTICLE XII.
MISCELLANEOUS
Section 12.01 Conveyance by the Owner Trustee is Binding...............................................19
Section 12.02 Instructions; Notices....................................................................19
Section 12.03 Severability.............................................................................20
Section 12.04 Limitation of Liability..................................................................20
Section 12.05 Separate Counterparts....................................................................20
Section 12.06 Successors and Assigns...................................................................20
Section 12.07 Headings.................................................................................20
Section 12.08 Governing Law............................................................................21
Section 12.09 No Recourse..............................................................................21
Section 12.10 Acceptance of Terms of Agreement.........................................................21
EXHIBIT A CERTIFICATE OF TRUST OF DAIMLERCHRYSLER
MASTER OWNER TRUST......................................................... A-1
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TRUST AGREEMENT dated as of June 1, 2002, between DAIMLERCHRYSLER
WHOLESALE RECEIVABLES LLC, a Delaware limited liability company ("DCWR"), as
Beneficiary and as Transferor, and CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association, as owner trustee (the "Owner
Trustee").
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. (a) Capitalized terms used herein and not
defined herein have the meaning assigned to them in the Series 2002-CC
Supplement, the Pooling and Servicing Agreement or the Indenture. For purposes
of this Agreement, the following terms have the following meanings:
"Agreement" means this Trust Agreement, as the same may be amended,
modified or supplemented from time to time.
"Beneficiary" means DCWR, as beneficial owner of the Trust, and each
Permitted Affiliate Transferee or other permitted transferee under Section
10.02.
"Beneficiary Trust Account" means the account established by the
Owner Trustee on behalf of the Trust in accordance with Section 4.04.
"CARCO Receivables Trust" means CARCO Auto Loan Master Trust.
"CARCO Receivables Trust Trustee" means The Bank of New York, as
trustee under the Pooling and Servicing Agreement, and each successor trustee
under the Pooling and Servicing Agreement.
"Certificate of Trust" means the Certificate of Trust substantially
in the form attached hereto as Exhibit B which has been filed for the Trust
pursuant to Section 3810(a) of the Delaware Business Trust Act.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Collateral Certificate" means the Series 2002-CC Certificate issued
pursuant to the Pooling and Servicing Agreement and the Series 2002-CC
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Delaware Business Trust Act" means the Delaware Business Trust Act,
12 Del. C. ss. 3801, et seq., as amended from time to time, and any successor
statute thereto.
"Disqualification Event" with respect to the Owner Trustee means (a)
the bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the
occurrence of the date of resignation of the Owner Trustee, as set forth in a
notice of resignation given pursuant to Section 8.01, or (c) the delivery to the
Owner Trustee of the instrument or instruments of removal referred to in Section
8.01 (or, if such instruments specify a later effective date of removal, the
occurrence of such later date), or (d) failure of the Owner Trustee to qualify
under the requirements of Section 8.03.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnified Person" is defined in Section 11.02.
"Indenture" means the Indenture dated as of June 1, 2002 between the
Trust and the Indenture Trustee, which by its terms is identified as being the
Indenture referred to herein, as amended, restated, supplemented or otherwise
modified from time to time.
"Indenture Collateral" is defined in Section 2.11(b).
"Indenture Trustee" means The Bank of New York, as trustee under the
Indenture, and each successor trustee under the Indenture.
"Note" is defined in the Indenture.
"Noteholder" is defined in the Indenture.
"Note Rating Agency" is defined in the Indenture.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association, a national banking association, not in its individual capacity but
solely in its capacity as owner trustee hereunder, and each successor trustee
under Article VIII, in its capacity as owner trustee hereunder, and each
co-trustee under and to the extent provided in Section 8.04, in its capacity as
owner trustee hereunder.
"Ownership Interest" means the ownership interest of the Beneficiary
in the Trust hereunder, together with the rights and privileges set forth in
Section 10.01, which shall constitute the sole beneficial interest in the Trust
within the meaning of the Delaware Business Trust Act.
"Person" means any legal person, including any individual,
corporation, partnership (general or limited), limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"Periodic Filing" means any filing or submission that the Trust is
required to make with any Governmental Authority.
"Permitted Affiliate Transferee" is defined in Section 10.01.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement, dated as of December 5, 2001, among DCWR,
DaimlerChrysler Services North America LLC, as Servicer, and The Bank of New
York, as CARCO Receivables Trustee, as amended, restated, supplemented or
otherwise modified from time to time, including as supplemented by the Series
2002-CC Supplement.
"Requirements of Law" shall mean, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local.
"Secretary of State" means the Office of the Secretary of State of
the State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Series 2002-CC Supplement" means the Series 2002-CC Supplement to
the Pooling and Servicing Agreement, which by its terms is identified as being
the Series 2002-CC Supplement referred to herein, as amended, restated,
supplemented or otherwise modified from time to time.
"Transaction Documents" mean the Indenture, any Indenture Supplement
thereto, the Certificate of Trust, the Administration Agreement and other
documents delivered in connection herewith and therewith.
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"Transferor" means DaimlerChrysler Wholesale Receivables LLC, a
Delaware limited liability company, and its successors and assigns.
"Trust" means the trust created by this Agreement and the filing of
the Certificate of Trust with the Secretary of State.
"Trust Estate" is defined in Section 2.05.
"Trustee Bank" means Chase Manhattan Bank USA, National Association
in its individual capacity, each bank appointed as successor Owner Trustee under
Article VIII in its individual capacity and each bank appointed as co-trustee
under and to the extent provided in Section 8.04 in its individual capacity.
"UCC" means the Uniform Commercial Code as in effect in the State of
Delaware.
Section 1.02 Generic Terms. (a) The terms "hereby," "hereof,"
"hereto," "herein," "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Section,"
"Exhibit" or "Schedule" will refer to a Section of, or an Exhibit or Schedule
to, this Agreement.
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the singular
number mean and include the plural number and vice versa.
(d) The terms "include," "including" and similar terms will be
construed as if followed by the phrase "without limitation."
(e) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant hereto
or in connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II.
ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE;
COLLATERAL CERTIFICATE
Section 2.01 Formation of Trust; Name. The Trust is hereby created,
to be named "DaimlerChrysler Master Owner Trust", under which name the Owner
Trustee or the Beneficiary may conduct any activities and business of the Trust
contemplated hereby, execute contracts and other instruments on behalf of the
Trust and xxx and be sued on behalf of the Trust.
Section 2.02 Transfer of Property to Trust; Initial Capital
Contribution of Trust Estate. The Beneficiary hereby sells, assigns, grants and
transfers over to the Owner Trustee, as of the date hereof, $1.00. The Owner
Trustee hereby acknowledges receipt in trust from the Beneficiary, as of the
date hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate.
Section 2.03 Purposes and Powers; Trust To Operate as a Single
Purpose Entity. (a) The purpose of the Trust is to engage solely in a program of
acquiring interests in the CARCO Receivables Trust and issuing
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Notes under the Indenture and related activities. Without limiting the
generality of the foregoing, the Trust may and shall have the power and
authority to:
(i) acquire from DCWR the Collateral Certificate, and other
certificates of beneficial interest, of the CARCO Receivables Trust;
(ii) from time to time, grant a security interest in the
Collateral Certificate, or other beneficial interests in the CARCO
Receivables Trust, and grant a security interest in accounts established
for the benefit of indebtedness of the Trust under the Indenture;
(iii) from time to time authorize and approve the issuance of
Notes pursuant to the Indenture without limitation to aggregate amounts
and, in connection therewith, determine the terms and provisions of such
Notes and of the issuance and sale thereof, including the following:
(A) determining the principal amount of the Notes;
(B) determining the maturity date of the Notes;
(C) determining the rate of interest, if any, to be paid
on the Notes;
(D) determining the price or prices at which such Notes
will be sold by the Trust;
(E) determining the provisions, if any, for the
redemption of such Notes;
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under
which the Notes may be issued and the banks or trust companies to
act as trustees, fiscal agents and paying agents thereunder;
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes under
the Securities Act, the qualification of indentures under the Trust
Indenture Act of 1939 and the qualification under any other
applicable federal, foreign, state, local or other governmental
requirements;
(H) preparing any prospectus, offering memorandum,
private placement memorandum or other descriptive material relating
to the issuance of the Notes;
(I) listing the Notes on any United States or non-United
States securities exchange;
(J) entering into one or more interest rate or currency
swaps, caps, collars, guaranteed investment contracts or other
derivative agreements with counterparties (which may include,
without limitation, DCWR or any of its affiliates) to manage
interest rate or currency risk relating to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes; and
(L) arranging for the underwriting, subscription,
purchase or placement of the Notes and selecting underwriters,
managers and purchasers or agents for that purpose;
(iv) from time to time receive payments and proceeds with
respect to the Collateral Certificate and other certificates of beneficial
interest in the CARCO Receivables Trust and the Indenture and either
invest or distribute those payments and proceeds;
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(v) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vi) from time to time make and receive payments pursuant to
derivative agreements;
(vii) from time to time make payments on the Notes;
(viii) from time to time acquire additional collateral from
DCWR or any special purpose vehicle established by DCWR;
(ix) from time to time perform such obligations and exercise
and enforce such rights and pursue such remedies as may be appropriate by
virtue of the Trust being party to any of the agreements contemplated in
clauses (i) through (viii) above; and
(x) if the Collateral Certificate is the only remaining
outstanding investor certificate issued by the CARCO Receivables Trust,
then at the written direction of the Beneficiary dissolve the CARCO
Receivables Trust and terminate the Pooling and Servicing Agreement,
acquire the Receivables directly and enter into a sale and servicing
agreement and other documents that contain, to the extent applicable, the
sale and servicing provisions of the Pooling and Servicing Agreement and
other documents and amend any documents to reflect the direct ownership of
the Receivables and the provisions of the Pooling and Servicing Agreement
and other documents.
In connection with any of the foregoing, the Trust may (x) execute
and deliver, and/or accept, such instruments, agreements, certificates, Uniform
Commercial Code financing statements and other documents, and create such
security interests, as may be necessary or desirable in connection therewith,
and (y) subject to the terms of this Agreement, take such other action as may be
necessary, helpful or incidental to the foregoing.
(b) The Owner Trustee and the Beneficiary, on behalf of the Trust,
are hereby authorized and shall have the power to execute and deliver from time
to time loan agreements, underwriting agreements, selling agent agreements,
purchase agreements, private placement agreements, swap and other derivative
agreements, including performance agreements, indentures, indenture supplements,
notes, security agreements, and other agreements and instruments as are
consistent with the purposes of the Trust. Without limiting the generality of
the foregoing, the Beneficiary and the Owner Trustee, on behalf of the Trust,
are specifically authorized to execute and deliver without any further act, vote
or approval, and notwithstanding any other provision of this Agreement, the
Delaware Business Trust Act or other applicable law, rule or regulation,
agreements, documents or securities relating to the purposes of the Trust
including:
(i) the Indenture, each Indenture Supplement, each document
related to each such document, and each other Transaction Document to
which it is to be a party and each related document;
(ii) the Notes;
(iii) each interest rate or currency swap, cap, collar,
guaranteed investment contract or other derivative agreement, including
agreements related thereto, between the Trust and a counterparty (which
may include, without limitation, DCWR or any of its affiliates) to manage
interest rate or currency risk relating to the Notes; and
(iv) any other document necessary or desirable in connection
with the fulfillment of the purposes of the Trust described in, and
pursuant to, Section 2.03(a).
The authorization set forth in the preceding sentence will not be
deemed a restriction on the power and authority of the Beneficiary and the Owner
Trustee, on behalf of the Trust, to execute and deliver other agreements,
documents instruments and securities or to take other actions on behalf of the
Trust in connection with the fulfillment of the purposes of the Trust described
in, and pursuant to, Section 2.03(a).
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(c) The Owner Trustee and the Beneficiary will at all times maintain
the books, records and accounts of the Trust separate and apart from those of
any other Person, and will cause the Trust to hold itself out as being a Person
separate and apart from any other Person.
(d) If the Trust enters into any interest rate swap or any other
swap or derivative instrument (each, a "derivative instrument") in connection
with its issuance of a series of Notes, such derivative instrument shall be
entered into at the time of issuance of such series of Notes, shall not have a
notional amount at the time of issuance in excess of the principal amount of
such Notes and shall not thereafter be expected to exceed such principal amount
outstanding from time to time, shall not require the Trust to make discretionary
decisions (other than decisions relating to the servicing of the Receivables)
and shall have characteristics that relate to and are intended to hedge (partly
or fully) against some risk or risks related to such series of Notes or the
Receivables or Permitted Investments.
(e) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
Section 2.04 Appointment of Owner Trustee. The Beneficiary hereby
appoints Chase Manhattan Bank USA, National Association as Owner Trustee of the
Trust effective as of the date hereof.
Section 2.05 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the initial Trust Estate, the Collateral Certificate and the
other documents and assets described in Section 2.03, together with any
payments, proceeds or income of any kind from such documents or assets or any
other source and any other property held under this Agreement (collectively, the
"Trust Estate"), upon the trust set forth herein and, subject to Section
2.03(a)(ii), for the sole use and benefit of the Beneficiary. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Delaware Business Trust Act and that this Agreement constitute the governing
instrument of such business trust. The parties hereto agree that they will take
no action contrary to the foregoing intention. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth herein and,
to the extent not inconsistent herewith, in the Delaware Business Trust Act with
respect to accomplishing the purposes of the Trust.
Section 2.06 Title to Trust Estate. Title to all of the Trust Estate
will be vested in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article VII; provided, however, that if the laws of any
jurisdiction require that title to any part of the Trust Estate be vested in the
trustees of a trust, then title to that part of the Trust Estate will be deemed
to be vested in the Owner Trustee or any co-trustee or separate trustee, as the
case may be, appointed pursuant to Article VIII.
Section 2.07 Nature of Interest in the Trust Estate. The Beneficiary
will not have any legal title to or right to possession of any part of the Trust
Section 2.08 Creation of Trust; Principal Office of Owner Trustee.
The Owner Trustee will file a certificate of trust relating to the Trust with
the Secretary of State and maintain the Owner Trustee's principal office in the
State of Delaware. However, nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The Trust will be located and
administered in the State of Delaware.
Section 2.09 Tax Matters. The parties hereto intend that, for income
and franchise tax purposes, the Trust will be treated as a security device and
disregarded as an entity and its assets shall be treated as owned in whole by
the Beneficiary, and the parties hereto will file all their tax returns in a
manner consistent with that intent unless otherwise required by a taxing
authority. Except as otherwise expressly provided herein, any tax elections
required or permitted to be made by the Trust under the Code or otherwise will
be made by the Beneficiary. The Trust will not elect to be treated as a
corporation for any tax purpose.
Section 2.10 Fiscal Year. The fiscal year of the Trust will end on
the last day of December of each year.
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Section 2.11 Transfer of Collateral Certificate.
(a) In consideration of the Trust's delivery to or upon the order of
the Transferor of the net proceeds of the initial sale of the Notes, the
Transferor does hereby absolutely transfer, assign, set over and otherwise
convey to the Trust, without recourse (subject to the obligations herein), all
right, title and interest of the Transferor in and to the Collateral Certificate
and the proceeds thereof. This Agreement also shall be deemed to be and hereby
is a security agreement within the meaning of the UCC, and the conveyance by the
Transferor provided for in this Agreement shall be deemed to be and hereby is a
grant by the Transferor to the Trust of a security interest in and to all of the
Transferor's right, title and interest, whether now owned or hereafter acquired,
in, to and under the Collateral Certificate and all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from, or relating to the Collateral
Certificate and the proceeds thereof, to secure the rights of the Trust under
this Agreement and the obligations of the Transferor hereunder. The Transferor
and the Trust shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that the security interest in the
Collateral Certificate created hereunder will be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
(b) To the extent that the Transferor retains any interest in the
Collateral Certificate, the Transferor hereby grants to the Indenture Trustee
for the benefit of the holders of the Notes a security interest in and to all of
the Transferor's right, title, and interest, whether now owned or hereafter
acquired, in, to, and under all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, and investment property consisting of,
arising from, or relating to the Collateral Certificate and the proceeds thereof
(collectively, the "Indenture Collateral"), to secure performance of all of the
obligations of the Transferor under the Pooling and Servicing Agreement, the
Series 2002-CC Supplement and the Transaction Documents. With respect to the
Indenture Collateral, the Indenture Trustee shall have all of the rights it has
under the Transaction Documents. The Indenture Trustee shall have all of the
rights of a secured creditor under the UCC in New York and the UCC in Delaware.
Section 2.12 Closing. The transfer, assignment, set-over, pledge and
conveyance of the Collateral Certificate and the issuance of the Notes shall
take place at the offices of Sidley Xxxxxx Xxxxx & Xxxx llp, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date (as defined in the Series 2002-CC
Supplement), simultaneously with the closing of the transactions contemplated by
the Pooling and Servicing Agreement, the Series 2002-CC Supplement and the other
Transaction Documents.
Section 2.13 Books and Records. In connection with the transfer,
assignment, set-over, pledge and conveyance set forth in Section 2.11, the
Transferor agrees to record and file, at its own expense, any financing
statements (and continuation statements with respect to such financing
statements when applicable) required to be filed with respect to the Collateral
Certificate assigned by the Transferor hereunder, meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary under
the applicable UCC to perfect the transfer, assignment, set-over, pledge and
conveyance of the Collateral Certificate to the Trust, and to deliver a file-
stamped copy of such financing statements or other evidence of such filings to
the Trust on or prior to the Closing Date (excluding such continuation and
similar statements, which shall be delivered promptly after filing).
In connection with the transfer, assignment, set-over, pledge and
conveyance hereunder, the Transferor further agrees, at its own expense, on or
prior to the Closing Date, to cause the CARCO Receivables Trust Trustee to
register the Indenture Trustee (as pledgee of the Trust) as the registered owner
of the Collateral Certificate.
Section 2.14 Series 2002-CC Certificateholder. The Indenture Trustee
shall be the Series 2002-CC Certificateholder for all purposes under the Pooling
and Servicing Agreement and the Series 2002-CC Supplement. To the extent the
Collateral Certificate is sold or otherwise transferred to a third-party in
connection with the sale or liquidation of the Trust Estate pursuant to the
provisions of the Indenture, such transferee shall be the Series 2002-CC
Certificateholder for all purposes under the Pooling and Servicing Agreement.
Section 2.15 Representations and Warranties of the Transferor. The
Transferor makes the following representations and warranties as to the
Collateral Certificate on which the Trust is deemed to have relied
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in acquiring the Collateral Certificate. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of the date of
initial issuance of each series of Notes, but shall survive the transfer and
assignment of the Collateral Certificate to the Trust and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
(a) Title. It is the intention of the Transferor that the transfer
and assignment herein contemplated constitute either (i) a sale of the
Collateral Certificate, (ii) a grant of a perfected security interest therein
from the Transferor to the Trust or (iii) a grant of a perfected security
interest therein from the Transferor to the Indenture Trustee. The Collateral
Certificate has not been sold, transferred, assigned or pledged by the
Transferor to any Person other than pursuant to this Agreement or the Indenture.
Immediately prior to the transfer and assignment herein contemplated, the
Transferor had good and marketable title to the Collateral Certificate, free and
clear of all liens and rights of others and, immediately upon the transfer
thereof, the Trust shall have good and marketable title to the Collateral
Certificate, free and clear of all liens of rights of others or a first priority
perfected security interest therein; and the transfer has been perfected, by the
filing of appropriate financing statements and the taking of such other action
pursuant to the UCC, under the UCC. The Transferor has no knowledge of any
current statutory or other non-consentual liens to which the Collateral
Certificate is subject.
(b) All Actions Taken. All actions necessary under the applicable
UCC in any jurisdiction to be taken (i) to give the Trust a first priority
perfected security interest or ownership interest in the Collateral Certificate,
and (ii) to give the Indenture Trustee a first priority perfected security
interest in the Collateral Certificate (including, without limitation, UCC
filings with the Delaware Secretary of State), in each case subject to any
statutory or other non-consentual liens with respect to the Collateral
Certificate, have been taken. The Transferor has no knowledge of any current
statutory or other non-consentual liens which the Collateral Certificate is
subject.
(c) No Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Transferor of this
Agreement or any other Transaction Document, the performance by the Transferor
of the transactions contemplated by this Agreement or any other Transaction
Document and the fulfillment by the Transferor of the terms hereof or thereof,
have been obtained or have been completed and are in full force and effect
(other than approvals, authorizations, consents, orders and other actions which
if not obtained or completed or in full force or effect would not have a
material adverse effect on the Transferor or the Trust or upon the
collectibility of the Collateral Certificate or upon the ability of the
Transferor to perform its obligations under this Agreement).
(d) Transfers Comply. Each of (i) the transfer of the Collateral
Certificate by the Transferor to the Trust pursuant to the terms of this
Agreement, (ii) the pledge of the Collateral Certificate by the Trust to the
Indenture Trustee pursuant to the terms of the Indenture and (iii) the pledge of
the Collateral Certificate by the Transferor to the Indenture Trustee pursuant
to the terms of this Agreement, comply with the provisions of the Pooling and
Servicing Agreement relating to transfers of the Collateral Certificate.
Section 2.16 Protection of Title to Collateral Certificate.
(a) The Transferor shall take all actions necessary, and the Trust
shall cooperate with the Transferor, if applicable, to perfect, and maintain
perfection of, the interests of the Trust in the Collateral Certificate. The
Transferor shall execute and file and cause to be executed and filed such
financing statements and continuation statements, all in such manner and in such
places as may be required by law fully to perfect, maintain, and protect the
interest of the Trust in the Collateral Certificate and in the proceeds thereof
and the interest of the Indenture Trustee in the Trust Estate and the proceeds
thereof. The Transferor shall deliver (or cause to be delivered) to the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Transferor shall not change its name, identity or corporate
structure or the jurisdiction of its organization in any manner that might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above or otherwise seriously misleading within the meaning of the
UCC (regardless of whether such a filing was ever made), unless it shall have
given the Owner Trustee and the Indenture Trustee at least five days' prior
written notice thereof and, if applicable, shall have timely filed appropriate
8
amendments to any and all previously file financing statements or continuation
statements or timely filed additional UCC financing statements, in each case, so
that the interests of the Trust and the Indenture Trustee are not adversely
affected.
(c) The Transferor shall have an obligation to give the Owner
Trustee and the Indenture Trustee at least 60 days' prior written notice of any
change in the jurisdiction of its organization or any relocation of its chief
executive office or other change in location if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
to any previously filed financing or continuation statement or of any new
financing statement (regardless of whether such a filing was ever made), and
shall promptly, if applicable, file any such amendment or new financing
statement.
(d) The Owner Trustee shall permit the Indenture Trustee and its
agents at any time following reasonable notice and during normal business hours
to inspect, audit and make copies of and abstracts from the Owner Trustee's
records regarding the Collateral Certificate.
Section 2.17 Assignment to Indenture Trustee. The Transferor hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Trust to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Trust in, to and under the Collateral Certificate and the other property
constituting the Trust Estate and/or the assignment of any or all of the Trust's
rights and obligations hereunder to the Indenture Trustee.
Section 2.18 Merger or Consolidation of, or Assumption of the
Obligations of, Transferor. Any Person (a) into which the Transferor may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Transferor shall be a party or (c) which may succeed to the properties
and assets of the Transferor substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Transferor under this Agreement, shall be the successor to the
Transferor hereunder without the execution or filing of any other document or
any further act by any of the parties to this Agreement; provided, however, that
(i) the Transferor shall have delivered to the Owner Trustee and the Indenture
Trustee an Officers' Certificate (as defined in the Indenture) and an Opinion of
Counsel (as defined in the Indenture) each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
2.18 and that all conditions precedent provided for in this Agreement relating
to such transaction have been complied with, (ii) written confirmation from the
Note Rating Agency (as defined in the Indenture) that such transaction will not
result in any Note Rating Agency reducing or withdrawing its then existing
rating of the Notes and (iii) the Transferor shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all actions necessary to perfect the interests
of the Trust and the Indenture Trustee have been taken, including that all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and Indenture Trustee, respectively, in the
Collateral Certificate and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Following the effectiveness of the
succession provided for in this Section 2.18, the predecessor Transferor shall
be released from any obligations and liabilities provided for under the
Transaction Documents other than any obligations or liabilities incurred by such
predecessor Transferor prior to the effectiveness of such succession.
Section 2.19 Limitation on Liability of Transferor and Others. The
Transferor and any director or officer or employee or agent of the Transferor
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor, in its capacity as such, shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability.
9
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01 Representations and Warranties of the Beneficiary. The
Beneficiary hereby represents and warrants to the Owner Trustee as of the date
of this Agreement and as of the date of each increase in the Investor Interest
of the Collateral Certificate that:
(a) The Beneficiary is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full limited liability company power, authority and legal right to own
its properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement.
(b) The Beneficiary is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any state required in order to
conduct its business, and has obtained all necessary licenses and approvals with
respect to the Beneficiary, in each jurisdiction in which failure to so qualify
or to obtain such licenses and approvals would have a material adverse effect on
the interests of the Noteholders hereunder or under the Indenture; provided,
however, that no representation or warranty is made with respect to any
qualifications, licenses or approvals which the Owner Trustee or the Indenture
Trustee has or may be required at any time to obtain, if any, in connection with
the transactions contemplated hereby or by any other Transaction Document to
which the Owner Trustee or the Indenture Trustee, as the case may be, is a
party.
(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the other
Transaction Documents to which the Beneficiary is a party have been duly
authorized by the Beneficiary by all necessary limited liability company action
on its part and each of this Agreement and the other Transaction Documents to
which the Beneficiary is a party will remain, from the time of its execution, an
official record of the Beneficiary; the Beneficiary has the power and authority
to assign the property to be assigned to and deposited with the Trust.
(d) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Beneficiary is a party or by
which it or any of its properties are bound (other than violations of such
indentures, contracts, agreements, mortgages, deeds of trust or other
instruments which, individually or in the aggregate, would not have a material
adverse effect on the Beneficiary's ability to perform its obligation under this
Agreement).
(e) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with or violate any Requirements of Law applicable to
the Beneficiary.
(f) There are no proceedings or investigations pending or threatened
against the Beneficiary before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having jurisdiction
over the Beneficiary (i) asserting the invalidity of this Agreement or any of
the Transaction Documents, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any of the Transaction
Documents, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Beneficiary, would materially and adversely affect the
performance by the Beneficiary of its obligations under this Agreement or the
Transaction Documents, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or the Transaction Documents.
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ARTICLE IV.
DISTRIBUTIONS OF FUNDS
Section 4.01 Distribution of Funds. All funds received by the Trust
to the extent not encumbered by the Indenture and otherwise available for
distribution (or if encumbered by the Indenture, which have been released by the
relevant parties benefiting from such encumbrance) will be distributed to the
Beneficiary.
Section 4.02 Payments from Trust Estate Only. All payments to be
made on behalf of the Trust under this Agreement will be made only from the
income and the capital proceeds derived from the Trust Estate and only to the
extent that the Trust will have received income or capital proceeds from the
Trust Estate. The Beneficiary agrees that it will look solely to the income and
capital proceeds derived from the Trust Estate (to the extent available for
payment as herein provided) and that, except as specifically provided herein,
the Owner Trustee will not be subject to any liability in its individual
capacity under this Agreement to the Beneficiary or to any other Person.
Section 4.03 Method of Payment. All amounts payable to the
Beneficiary pursuant to this Agreement will be paid, as a matter of
administrative convenience, by the Indenture Trustee in accordance with the
Indenture and the Indenture Supplements on behalf of the Trust to the
Beneficiary or a nominee therefor in such manner as the Beneficiary may from
time to time designate in written instructions to the Indenture Trustee.
Section 4.04 Establishment of Account. The Beneficiary hereby
authorizes the Owner Trustee to establish with JPMorgan Chase Bank (or if the
Owner Trustee is not Chase Manhattan Bank USA, National Association, such other
bank as the Owner Trustee shall select) and maintain on behalf of the Trust an
account into which all funds received by the Owner Trustee on behalf of the
Trust shall be deposited. Such account shall be designated the Beneficiary Trust
Account.
ARTICLE V.
DUTIES OF THE OWNER TRUSTEE
Section 5.01 Action Upon Instructions. (a) It is the intention of
the Beneficiary that the powers and duties of the Owner Trustee are to be purely
ministerial only, and that the Beneficiary will have the power to direct the
Owner Trustee as to all nonministerial matters concerning the administration of
the Trust (to the extent such matters are within the powers of the Beneficiary).
Accordingly, subject to subsections 5.01(b), 5.01 (c), and Article XII, the
Beneficiary will direct the Owner Trustee in the management of the Trust and the
Trust Estate. Such direction shall be exercised at any time only by written
instruction of the Beneficiary delivered to the Owner Trustee pursuant to this
Article V.
(b) The Owner Trustee will take such action or actions as may be
specified in any instructions delivered in accordance with subsection 5.01(a);
provided, however, that the Owner Trustee will not be required to take any such
action if the Trustee Bank has been advised by counsel that such action (i) is
contrary to the terms hereof or of any document contemplated hereby to which the
Trust or the Owner Trustee is a party or is otherwise contrary to law, or (ii)
is reasonably likely to result in liability on the part of the Trustee Bank,
unless the Trustee Bank will have received from the Beneficiary additional
indemnification or security satisfactory to the Trustee Bank against all costs,
expenses and liabilities arising from the Owner Trustee's taking such action.
(c) The Beneficiary will not direct the Owner Trustee to take or
refrain from taking any action that is not authorized or permitted by this
Agreement or is contrary to this Agreement, nor will the Owner Trustee be
obligated to follow any such direction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Transaction Document, or
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action to be adopted, the Owner Trustee will promptly give
11
notice to the Beneficiary requesting written instructions as to the course of
action to be adopted and, to the extent the Owner Trustee acts in good faith in
accordance with such written instructions received from the Beneficiary, the
Owner Trustee shall not be liable on account of such action to any Person. If
the Owner Trustee will not have received appropriate written instructions within
30 days of such notice (or within such shorter period of time as reasonably may
be specified in such notice) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement, as it
deems to be in the best interests of the Beneficiary, and will have no liability
to any Person for such action or inaction.
(e) The Owner Trustee will, subject to this Section 5.01, act in
accordance with the instructions given to it by the Beneficiary pursuant to
Section 5.01(b), and to the extent the Owner Trustee acts in good faith in
accordance with such instructions, the Owner Trustee will not be liable on
account of such action to any Person.
(f) The Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Transaction Documents to the extent
the Administrator has agreed in the Administration Agreement to perform any act
or to discharge any duty of the Owner Trustee hereunder or under and Transaction
Document, and the Owner Trustee shall not be held liable for the default or
failure of the Administrator to carry out its obligations under the
Administration Agreement.
Section 5.02 No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Owner Trustee, except a Trustee Bank authorized as co-trustee, will
be required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action would (i) require the consent or approval
or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or governmental charge under the laws of any jurisdiction
or any political subdivisions thereof in existence on the date hereof other than
the State of Delaware becoming payable by the Trustee Bank; or (iii) subject the
Trustee Bank to personal jurisdiction in any jurisdiction other than the State
of Delaware for causes of action arising from acts unrelated to the consummation
of the transactions by the Trustee Bank or the Owner Trustee, as the case may
be, contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be at the expense of the Beneficiary) to determine
whether any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee may, or if instructed to do so by
the Beneficiary, shall, appoint an additional trustee pursuant to Section 8.04
hereby to proceed with such action.
Section 5.03 No Duties Except Under Specified Agreements or
Instructions.
(a) The Owner Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of, create, maintain or perfect any security interest or
title in or otherwise deal with any part of the Trust Estate, prepare, file or
record any document or report (including any tax related filing for any holder
of Notes), or to otherwise take or refrain from taking any action under, or in
connection with, this Agreement, the Trust or any document contemplated hereby
to which the Trust or the Owner Trustee is a party, except as expressly provided
by the terms of this Agreement or in written instructions from the Beneficiary
received pursuant to Section 5.01; and no implied duties or obligations will be
read into this Agreement against the Owner Trustee. Unless otherwise directed by
the Beneficiary in accordance with Section 5.01(a), the Owner Trustee shall have
no obligation or duty to take any action the Trust is authorized and empowered
to take pursuant to Section 2.03(a). The Owner Trustee nevertheless agrees that
it will, in its individual capacity and at its own cost and expense, promptly
take all action as may be necessary to discharge any lien, pledge, security
interest or other encumbrance on any part of the Trust Estate which results from
actions by or claims against the Trustee Bank not related to the ownership of
any part of the Trust Estate.
(b) The Owner Trustee agrees that it will not manage, control, use,
lease, sell, dispose of or otherwise deal with any part of the Trust Estate
except (i) in accordance with the powers granted to, or the authority conferred
upon, the Owner Trustee pursuant to this Trust Agreement, or (ii) in accordance
with the express terms hereof or with written instructions from the Beneficiary
pursuant to Section 5.01. Unless otherwise directed by the Beneficiary in
accordance with Section 5.01(a), the Owner Trustee shall not be required to
perform any obligations
12
or duties of the Trust under the Indenture, which duties and obligations shall
be the sole responsibility of the Beneficiary.
Section 5.04 Trust Operation. The operations of the Trust will be
conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the Owner
Trustee or the Beneficiary;
(b) the Trust will not incur any indebtedness for money borrowed or
incur any obligations except in connection with the purposes set forth in
Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be maintained
separately from those of the Beneficiary and its affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liabilities distinct from those of the
Beneficiary, the Beneficiary's affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Trust and
not that of the Beneficiary or any of its affiliates, and will use its best
efforts to avoid the appearance (i) of conducting business on behalf of the
Beneficiary or any affiliates thereof, or (ii) that the assets of the Trust are
available to pay the creditors of the Beneficiary or any affiliates thereof;
(e) the Trust will not hold itself out as being liable for the debts
of the Beneficiary or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiary or any affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such transaction is otherwise on terms
neither more favorable nor less favorable than the terms and conditions
available at the time to the Trust for comparable transactions with other
Persons; and
(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding by the Owner Trustee that the Trust's
liabilities exceeds its assets or that the Trust is unable to pay its debts in a
timely manner as they become due.
Section 5.05 Execution of Documents. The Owner Trustee will, at the
written direction of the Beneficiary, execute and deliver on behalf of the Trust
such instruments, agreements and certificates contemplated hereby to which the
Trust is or is to be a party. Absent such written direction, the Owner Trustee
shall have no duty or obligation to execute or deliver any instruments,
agreements or certificates on behalf of the Trust, all of which shall be
executed and delivered by the Beneficiary on behalf of the Trust (other than
those executed and delivered pursuant to the first sentence of this Section
5.05).
Section 5.06 Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, each of the Owner Trustee and the
Beneficiary covenants and agrees that it shall not at any time with respect to
the Trust or the CARCO Receivables Trust acquiesce, petition or otherwise invoke
or cause the Trust or the CARCO Receivables Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Trust or the CARCO Receivables Trust under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or the CARCO Receivables Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Trust
or the CARCO Receivables Trust; provided, however, that this Section 5.06 shall
not preclude any remedy described in Article VII of the Indenture.
13
ARTICLE VI.
CONCERNING THE TRUSTEE BANK
Section 6.01 Acceptance of Trust and Duties. The Trustee Bank
accepts the trust hereby created and agrees to perform the same but only upon
the terms of this Agreement. If, notwithstanding Section 4.03, the Trustee Bank
receives moneys constituting part of the Trust Estate, the Trustee Bank agrees
to disburse all such moneys in accordance with the terms of this Agreement. The
Trustee Bank will not be answerable or accountable under any circumstances in
its individual capacity, except (i) for its own willful misconduct, bad faith or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.07, (iii) for the failure by the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of subsection
5.03(a), or (iv) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or other compensation earned by the Trustee Bank for
acting as trustee hereunder. In particular, but not by way of limitation:
(a) the Trustee Bank will not be personally liable for any error of
judgment made in good faith by an authorized officer of the Owner Trustee so
long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) the Trustee Bank will not be personally liable with respect to
any action taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Beneficiary;
(c) no provision of this Agreement or any Transaction Document will
require the Trustee Bank to expend or risk its personal funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder, if the Trustee Bank will have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it, including such advances as the Trustee
Bank may reasonably request;
(d) under no circumstance will the Trustee Bank be personally liable
for the accuracy or performance of any representation, warranty, covenant,
agreement or other obligation of the Trust, including any indebtedness of the
Trust;
(e) the Trustee Bank will not be personally responsible or liable
for or in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Beneficiary or with respect to any agreement entered
into by the Trust;
(f) under no circumstances will the Trustee Bank be responsible or
liable for the action or inaction of the Beneficiary, nor will the Trustee Bank
be responsible for monitoring the performance of the Beneficiary's duties
hereunder or of any other Person acting for or on behalf of the Trust;
(g) in no event shall the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct or gross negligence, for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, for the
acts or omissions of brokers or dealers, and for any losses due to forces beyond
the control of the Trustee Bank, including strikes, work stoppages, acts of war
or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts
of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank shall have no
responsibility for the accuracy of any information provided to the Beneficiary
or any other Person that has been obtained from, or provided to the Trustee Bank
by, any other Person;
(h) the Trustee Bank shall not be liable for the default or
misconduct of the Indenture Trustee under any of the Transaction Documents or
otherwise, and the Trustee Bank shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Transaction Documents,
in each case that are required to be performed by the Indenture Trustee under
the Indenture; and
(i) the Trustee Bank shall be under no obligation to exercise any of
the rights or powers vested in it by this agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or
14
in relation to this Agreement or any Transaction Document, at the request, order
or direction of the Beneficiary, unless the Beneficiary has offered to the
Trustee Bank security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Trustee Bank therein or
thereby. The right of the Trustee Bank to perform any discretionary act
enumerated in this Agreement or in any Transaction Document shall not be
construed as a duty, and the Trustee Bank shall not be answerable for other than
its negligence or willful misconduct in the performance of any such act.
Section 6.02 Furnishing of Documents. The Owner Trustee will furnish
to the Beneficiary, within a reasonable time under the circumstances after
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee with respect to the Trust or the Trust Estate that are not,
pursuant to this Agreement, any Transaction Document or otherwise, required to
be forwarded directly to the Beneficiary.
Section 6.03 Representations and Warranties as to the Trust Estate.
The Owner Trustee makes no representation or warranty as to, and shall not be
liable for, the title, value, condition, design, operation, merchantability or
fitness for use of the Trust Estate (or any part thereof) or any other
representation or warranty, express or implied, whatsoever with respect to the
Trust Estate (or any part thereof).
Section 6.04 Signature of Periodic Filings. The Beneficiary, as
attorney-in-fact for the Owner Trustee, will sign on behalf of the Trust any
Periodic Filings of the Trust or other documents relating to the Trust prepared
by, or on behalf of, the Beneficiary.
Section 6.05 Reliance; Advice of Counsel. The Owner Trustee will
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any entity as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes rely on an officer's certificate of the relevant
party, as to such fact or matter, and such officer's certificate will constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon. In the administration of the Trust, the
Owner Trustee may, at the expense of the Trust, (i) execute the trust or any of
the powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys, and the Owner Trustee will not be liable for the
default or misconduct of any agent or attorney selected by the Owner Trustee
with reasonable care; and (ii) consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it, and the
Owner Trustee will not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons.
Section 6.06 Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trust hereby created the Trustee Bank acts
solely as Owner Trustee hereunder and not in its individual capacity; and all
Persons having any claim against the Trust or the Owner Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise, will
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Article
VI.
Section 6.07 Representations and Warranties. The Trustee Bank, other
than a Trustee Bank appointed as a co-trustee, hereby represents and warrants to
the Beneficiary that:
(a) The Trustee Bank is a national banking association duly
organized and validly existing in good standing under the laws of the United
States. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
15
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by the Trustee Bank with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on the Trustee Bank, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which the Trustee Bank is a party or by which any of the Trustee
Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware business trust.
ARTICLE VII.
TERMINATION OF TRUST AGREEMENT
Section 7.01 Termination of Trust Agreement.
(a) The Trust shall dissolve, upon the final distribution by the
Indenture Trustee or the Owner Trustee of all moneys or other property or
proceeds of the Trust Estate in accordance with the Delaware Business Trust Act
and the terms of the Indenture. Any money or other property held as part of the
Trust Estate following such distribution shall be distributed to the
Beneficiary. The bankruptcy, liquidation, dissolution, termination, death or
incapacity of the Beneficiary shall not (x) operate to terminate this Agreement
or the Trust, or (y) entitle the Beneficiary's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 7.01(a), the Beneficiary shall
not be entitled to revoke or terminate the Trust.
(c) Upon the winding up of the Trust in accordance with the Delaware
Business Trust Act, the Owner Trustee shall, at the written direction of the
Beneficiary, cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Delaware Business Trust Act and thereupon the
Trust and this Agreement (other than Article XI) shall terminate.
ARTICLE VIII.
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01 Resignation and Removal of the Owner Trustee;
Appointment of Successors. Upon the occurrence of a Disqualification Event with
respect to the Owner Trustee, the Beneficiary may appoint a successor Owner
Trustee by an instrument signed by the Beneficiary. If a successor Owner Trustee
has not been appointed within 30 days after the giving of written notice of such
resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee or the Beneficiary may apply to any court of
competent jurisdiction to appoint a successor Owner Trustee to act until such
time, if any, as a successor Owner Trustee has been appointed as above provided.
Any successor Owner Trustee so appointed by such court will immediately and
without further act be superseded by any successor Owner Trustee appointed as
above provided within one year from the date of the appointment by such court.
The Owner Trustee may resign at any time without cause by giving at least 30
days' prior written notice to the Beneficiary. In addition, the Beneficiary may
at any time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee. No such removal or resignation shall become
effective until a successor Owner Trustee, however appointed, becomes vested as
Owner Trustee hereunder pursuant to Section 8.02. The Beneficiary will notify
the Note Rating Agencies promptly after the resignation or removal of the Owner
Trustee and promptly after the appointment of a successor Owner Trustee.
Section 8.02 Transfer Procedures. Any successor Owner Trustee,
however appointed, will execute and deliver to the predecessor Owner Trustee an
instrument accepting such appointment, and such other
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documents of transfer as may be necessary, and thereupon such successor Owner
Trustee, without further act, will become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Owner Trustee
in the trust hereunder with like effect as if originally named an Owner Trustee
herein and the predecessor Owner Trustee will be fully discharged of its duties
and obligations to serve as Owner Trustee hereunder. The predecessor Owner
Trustee shall promptly deliver to the successor Owner Trustee all documents,
statements and monies held by it under this Agreement. The successor Owner
Trustee shall promptly file an amendment to the Certificate of Trust with the
Secretary of State identifying the name and principal place of business of such
successor Owner Trustee in the State of Delaware.
Section 8.03 Qualification of Owner Trustee. Any Owner Trustee will
at all times (i) be a trust company or a banking corporation under the laws of
its state of incorporation or a national banking association, having all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on a trust business in the State of
Delaware, (ii) comply with Section 3807 (and any other applicable Section) of
the Delaware Business Trust Act, (iii) have a combined capital and surplus of
not less than $50,000,000 (or have its obligations and liabilities irrevocably
and unconditionally guaranteed by an affiliated Person having a combined capital
and surplus of at least $50,000,000) and (iv) have (or have a parent which has)
a rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's or, if
not rated, otherwise satisfactory to each Note Rating Agency.
Section 8.04 Co-trustees and Separate Owner Trustees. Whenever the
Owner Trustee or the Beneficiary shall deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to make any claim or bring any suit with
respect to the Trust Estate, or whenever the Owner Trustee or the Beneficiary
shall be advised by counsel satisfactory to them that such action is necessary
or prudent, the Owner Trustee and the Beneficiary shall execute and deliver an
agreement supplemental hereto and all other instruments and agreements, and
shall take all other actions, necessary or proper to appoint one or more Persons
either as co-trustee or co-trustees jointly with the Owner Trustee of all or any
part of the Trust Estate, or as a separate trustee or separate trustees of all
or any part of the Trust Estate, and to vest in such Persons, in such capacity,
such title to the Trust Estate or any part thereof, and such rights or duties,
as may be necessary or desirable, all for such period and under such terms and
conditions as are satisfactory to the Owner Trustee and the Beneficiary. In case
a Disqualification Event shall occur with respect to any such co-trustee or
separate trustee, the title to the Trust Estate and all rights and duties of
such co-trustee or separate trustee shall, so far as permitted by law, vest in
and be exercised by the Owner Trustee, without the appointment of a successor to
such co-trustee or separate trustee.
ARTICLE IX.
AMENDMENTS
Section 9.01 Amendments.
(a) This Agreement may be amended from time to time, by a written
instrument executed by the Owner Trustee, at the written direction of the
Beneficiary, and the Beneficiary, without the consent of the Indenture Trustee
or any Noteholders, upon issuance of a CARCO Trust Tax Opinion and an Issuer Tax
Opinion (each as defined in the Indenture), which shall not be expenses of the
Owner Trustee or the Trustee Bank; provided, however, that the Trust shall
deliver to the Indenture Trustee and the Owner Trustee an Officer's Certificate
(as defined in the Indenture) to the effect that the Trust reasonably believes
that such amendment will not have an Adverse Effect (as defined in the
Indenture) and is not reasonably expected to have an Adverse Effect at any time
in the future.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, with the consent of the Indenture Trustee and not less than 66%
in Outstanding Dollar Principal Amount of the Outstanding Notes affected by such
amendment and upon issuance of a CARCO Trust Tax Opinion and an Issuer Tax
Opinion; provided, however, that, without the consent of the Holders of all of
the Notes then outstanding, no such amendment shall (a) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments in respect of the Collateral Certificate or distributions that
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are required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid percentage of the Outstanding Amount (as defined in the Indenture) of
the Notes, the Holders of which are required to consent to any such amendment.
(c) Promptly after the execution of any such amendment or consent,
the Trust shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Note Rating Agency.
(d) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel of the Trust to the
effect that such amendment is authorized or permitted by this Agreement. The
Owner Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
ARTICLE X.
OWNERSHIP INTEREST
Section 10.01 Ownership Interest; Prohibitions on Transfer. (a) The
Ownership Interest will initially be beneficially owned by DCWR. Transfers of
the Ownership Interest may be made between DCWR and any other Person who is an
Affiliate of DCWR (a "Permitted Affiliate Transferee") upon delivery to the
CARCO Receivables Trust Trustee and the Owner Trustee of a CARCO Trust Tax
Opinion and an Issuer Tax Opinion, respectively, with respect to such transfer.
The Beneficiary shall not sell, participate, transfer, assign, exchange or
otherwise pledge or convey all or any part of its right, title and interest in
and to its Ownership Interest to any other Person, except to any Permitted
Affiliate Transferee. Any purported transfer by the Beneficiary of all or any
part of its right, title and interest in and to its Ownership Interest to any
Permitted Affiliate Transferee will be effective only upon the issuance of a
CARCO Trust Tax Opinion and an Issuer Tax Opinion, which will not be an expense
of the Owner Trustee or the Trustee Bank. Any purported transfer by the
Beneficiary of all or any part of its right, title and interest in and to its
Ownership Interest which is not in compliance with the terms of this Section
10.01 will be null and void.
(b) As part of the Ownership Interest, the Beneficiary will be
entitled to all rights provided to it under this Agreement and will be subject
to the terms and conditions contained in this Agreement.
(c) The Ownership Interest will not be represented by a certificate
or other instrument. The Owner Trustee will maintain at its office referred to
in Section 2.07, or at the corporate trust office of JPMorgan Chase Bank or any
other agent appointed by it and approved in writing by the Beneficiary, a
register for the registration of the Ownership Interest. Such register will show
the name and address of the holder of the Ownership Interest, and the Owner
Trustee will treat such register as definitive and binding for all purposes
hereunder. A registration of a transfer of the Ownership Interest shall only be
made upon satisfaction of the conditions in Section 10.01(a) and delivery to the
Owner Trustee of a copy of the proposed assignment documentation and a
certification from the Beneficiary that such conditions have been satisfied.
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ARTICLE XI.
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01 Trustee Bank Fees and Expenses. The Trustee Bank will
receive all fees and other charges described in a separate fee agreement between
DaimlerChrysler Services North America LLC and the Trustee Bank promptly when
due thereunder and the Trustee Bank will be reimbursed for all other reasonable
out-of-pocket costs and expenses (including reasonable fees and expenses of
counsel) incurred by it in connection with its acting as Owner Trustee of the
Trust.
Section 11.02 Indemnification. To the fullest extent permitted by
law, the Transferor hereby agrees, whether or not any of the transactions
contemplated by this Agreement will be consummated, to assume liability for, and
hereby indemnifies, protects, saves and keeps harmless the Trustee Bank and its
officers, directors, successors, assigns, legal representatives, agents and
servants (each an "Indemnified Person"), from and against any and all
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses or disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted at any time against an Indemnified Person
(whether or not also indemnified against by any other Person) in any way
relating to or arising out of this Agreement or any other related documents or
the enforcement of any of the terms of any thereof, the administration of the
Trust Estate or the action or inaction of the Owner Trustee, or the Trustee Bank
under this Agreement, and the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation, condition,
sale, return or other disposition of any property (including any strict
liability, any liability without fault and any latent and other defects, whether
or not discoverable), except, in any such case, to the extent that any such
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses and disbursements are the result of
any of the matters described in the exception in the third sentence of Section
6.01.
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Transferor will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The Trustee
Bank will have the right to employ separate counsel in any such action,
investigation or proceeding and to participate in the defense thereof and the
reasonable counsel fees and expenses of such counsel will be paid by the
Transferor. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Trustee Bank's choice of legal
counsel shall be subject to the approval of the Beneficiary, which approval
shall not be unreasonably withheld.
The indemnification set forth herein will survive the termination of
this Agreement and the resignation or removal of the Trustee Bank.
ARTICLE XII.
MISCELLANEOUS
Section 12.01 Conveyance by the Owner Trustee is Binding. Any sale
or other conveyance of any part of the Trust Estate by the Owner Trustee made
pursuant to the terms of this Agreement will bind the Beneficiary and will be
effective to transfer or convey all beneficial interest of the Owner Trustee and
Beneficiary in and to such part of the Trust Estate, as the case may be. No
purchaser or other grantee will be required to inquire as to the authorization,
necessity, expediency or regularity of such sale or conveyance or as to the
application of any sale or other proceeds with respect thereto by the Owner
Trustee or the officers.
Section 12.02 Instructions; Notices. All instructions, notices,
requests or other communications ("Deliveries") desired or required to be given
under this Agreement will be in writing and will be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile transmission or (d)
personal delivery, with receipt acknowledged in writing, to the following
addresses:
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(i) if to DCWR:
DaimlerChrysler Wholesale Receivables LLC
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Assistant Secretary
Facsimile: (000) 000-0000
(ii) if to the Owner Trustee:
Chase Manhattan Bank USA, National Association
c/o JPMorgan Chase Bank
000 Xxxxxxx Xxxxxxxxxx Xxxx, Xx. 3/OPS4
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trustee Department
Facsimile: (000) 000-0000
All Deliveries will be deemed given when actually received or
refused by the party to whom the same is directed (except to the extent sent by
certified or registered mail, return receipt requested, postage prepaid, in
which event such Deliveries will be deemed given three days after the date of
mailing and except to the extent sent by telecopy or other facsimile
transmission, in which event such Deliveries will be deemed given when answer
back is received). Either party may designate a change of address or
supplemental address by notice to the other party, given at least 15 days before
such change of address is to become effective.
Section 12.03 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
any provision hereof in any other jurisdiction.
Section 12.04 Limitation of Liability. (a) Neither the Beneficiary
nor any officer, director, employee, agent, partner, shareholder, trustee or
principal of the Beneficiary, the Trust or any Person owning, directly or
indirectly, any legal or beneficial interest in the Beneficiary, will have any
liability or obligation with respect to the Trust or the performance of this
Agreement or any other agreement, document or instrument executed by the Trust,
and the creditors of the Trust and all other Persons will look solely to the
Trust Estate for the satisfaction of any claims with respect thereto. The
foregoing limitation of liability is subject to Section 12.06 and is in addition
to, and not exclusive of, any limitation of liability applicable to the Persons
referred to above by operation of law.
(b) All agreements entered into by the Trust under which the Trust
would have any material liability will contain an exculpatory provision
substantially to the following effect:
Neither any trustee nor any beneficiary of DaimlerChrysler
Master Owner Trust nor any of their respective officers,
directors, employers or agents will have any liability with
respect to this agreement, and recourse may be had solely to
the assets of DaimlerChrysler Master Owner Trust with respect
thereto.
Section 12.05 Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered will be an original, but all such counterparts will together
constitute but one and the same instrument.
Section 12.06 Successors and Assigns. All covenants and agreements
contained herein will be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and the Beneficiary and their successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Beneficiary will bind the
successors and assigns of the Beneficiary.
Section 12.07 Headings. The headings of the various Sections herein
are for convenience of reference only and will not limit any of the terms or
provisions herein.
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Section 12.08 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 12.09 No Recourse. The holder of the Ownership Interest
acknowledges that the Ownership Interest does not represent an interest in or
obligation of the Beneficiary, the Owner Trustee (in its individual capacity),
the Indenture Trustee or any Affiliate thereof, and no recourse may be had
against such parties or their assets, or against the assets pledged under the
Indenture.
Section 12.10 Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE OWNERSHIP INTEREST BY THE BENEFICIARY, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF
THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND THE BENEFICIARY.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be duly executed, by their respective officers hereunto duly
authorized all as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Owner Trustee
By:______________________________
Name:
Title:
DAIMLERCHRYSLER WHOLESALE RECEIVABLES
LLC, by CHRYSLER FINANCIAL RECEIVABLES
CORPORATION, a member, as Beneficiary and as
Transferor
By:________________________________
Name:
Title:
[Signature Page to DaimlerChrysler Master Owner Trust Agreement]
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EXHIBIT A
CERTIFICATE OF TRUST OF
DAIMLERCHRYSLER MASTER OWNER TRUST
THIS Certificate of Trust of DaimlerChrysler Master Owner Trust (the
"Trust") has been duly executed and is being filed by Chase Manhattan Bank USA,
National Association, a national banking association, as trustee, to create a
business trust under the Delaware Business Trust Act (12 Del. C., Section 3801
et seq.).
1. Name. The name of the business trust created hereby is
DaimlerChrysler Master Owner Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xx. 3/OPS4,
Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department.
3. Effective Date. This Certificate of Trust shall be effective on
_______ __, 2002.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate
of Trust in accordance with Section 3811(a) of the Delaware Business Trust Act.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Owner Trustee
By: ____________________________________
Name:
Title:
A-1
