EXHIBIT 4.5
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AMENDED AND RESTATED
TRUST AGREEMENT
among
DaimlerChrysler Services North America LLC,
-------------------------------------------
as Depositor,
[___________________]
and
[________________________]
as Owner Trustee
Dated as of _________, 200_
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Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms..................................................1
SECTION 1.02. Other Definitional Provisions......................................4
ARTICLE II
Organization
SECTION 2.01. Name...............................................................4
SECTION 2.02. Office.............................................................4
SECTION 2.03. Purposes and Powers................................................5
SECTION 2.04. Appointment of Owner Trustee.......................................5
SECTION 2.05. Initial Capital Contribution of Series Owner Trust Estate..........6
SECTION 2.06. Declaration of Trust...............................................6
SECTION 2.07. Liability of Owners................................................6
SECTION 2.08. Title to Trust Property............................................6
SECTION 2.09. Situs of Trust.....................................................6
SECTION 2.10. Subdivision........................................................7
SECTION 2.11. Representations and Warranties of Depositor and Company............8
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.01. Initial Ownership; Beneficial Interests in the Trust..............10
SECTION 3.02. The Trust Certificates............................................10
SECTION 3.03. Authentication of Trust Certificates..............................10
SECTION 3.04. Registration of Transfer and Exchange of Trust Certificates;
Limitations on Transfer...........................................10
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates...........12
SECTION 3.06. Persons Deemed Owners.............................................12
SECTION 3.07. Access to List of Certificateholders' Names and Addresses.........12
SECTION 3.08. Maintenance of Office or Agency...................................13
SECTION 3.09. Appointment of Paying Agent.......................................13
SECTION 3.10. Fixed Value Securities............................................14
SECTION 3.11. Definitive Trust Certificates.....................................15
ARTICLE IV
Actions by Owner Trustee
SECTION 4.01. Prior Notice to Owners with Respect to Certain Matters............15
SECTION 4.02. Action by Owners with Respect to Certain Matters..................16
SECTION 4.03. Action by Owners with Respect to Bankruptcy.......................16
SECTION 4.04. Restrictions on Owners' Power.....................................16
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SECTION 4.05. Majority Control..................................................16
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account....................................16
SECTION 5.02. Application of Trust Funds........................................17
SECTION 5.03. Method of Payment.................................................17
SECTION 5.04. No Segregation of Moneys; No Interest.............................18
SECTION 5.05. Accounting and Reports to Owners, Internal Revenue Service
and Others........................................................18
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01. General Authority.................................................18
SECTION 6.02. General Duties....................................................19
SECTION 6.03. Action upon Instruction...........................................19
SECTION 6.04. No Duties Except as Specified in this Agreement or in
Instructions......................................................20
SECTION 6.05. No Action Except Under Specified Documents or Instructions........20
SECTION 6.06. Restrictions......................................................20
ARTICLE VII
Concerning Owner Trustee
SECTION 7.01. Acceptance of Trusts and Duties...................................21
SECTION 7.02. Furnishing of Documents...........................................22
SECTION 7.03. Representations and Warranties....................................22
SECTION 7.04. Reliance; Advice of Counsel.......................................22
SECTION 7.05. Not Acting in Individual Capacity.................................23
SECTION 7.06. Owner Trustee Not Liable for Trust Certificates or
Receivables.......................................................23
SECTION 7.07. Owner Trustee May Own Trust Certificates and Notes................24
SECTION 7.08. Pennsylvania Motor Vehicle Sales Finance Act Licenses.............24
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses.................................24
SECTION 8.02. Indemnification...................................................24
SECTION 8.03. Payments to Owner Trustee.........................................25
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ARTICLE IX
Dissolution and Termination of Trust Agreement
SECTION 9.01. Dissolution of the Trust and Termination of Trust Agreement.......25
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner Trustee........................26
SECTION 10.02. Resignation or Removal of Owner Trustee...........................26
SECTION 10.03. Successor Owner Trustee...........................................27
SECTION 10.04. Merger or Consolidation of Owner Trustee..........................27
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.....................27
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments........................................29
SECTION 11.02. No Legal Title to any Series Owner Trust Estate in Owners.........30
SECTION 11.03. Limitations on Rights of Others...................................30
SECTION 11.04. Notices...........................................................30
SECTION 11.05. Severability......................................................31
SECTION 11.06. Separate Counterparts.............................................31
SECTION 11.07. Successors and Assigns............................................31
SECTION 11.08. Covenants of Company..............................................31
SECTION 11.09. No Petition.......................................................31
SECTION 11.10. No Recourse.......................................................31
SECTION 11.11. Headings..........................................................32
SECTION 11.12. GOVERNING LAW.....................................................32
SECTION 11.13. Trust Certificate Transfer Restrictions...........................32
SECTION 11.14. Depositor Payment Obligation......................................32
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EXHIBITS
EXHIBIT A Form of Trust Certificate.......................................A-1
EXHIBIT B Form of Certificate of Trust of DaimlerChrysler Auto Trust __-_.B-1
EXHIBIT C Form of Transferor Certificate..................................C-1
EXHIBIT D Form of Investment Letter.......................................D-1
EXHIBIT E Form of Rule 144A Letter........................................E-1
EXHIBIT F Form of Supplement..............................................F-1
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AMENDED AND RESTATED TRUST AGREEMENT dated as of _______, 200_, among
DaimlerChrysler Services North America LLC, a Michigan limited liability
company, as depositor (the "Depositor"), [__________________________]
(the "Company"), a __________________________________, and
[______________________________], a ___________ ______________, as owner
trustee (the "Owner Trustee").
WHEREAS, the Depositor, the Owner Trustee and the Company entered into a
Trust Agreement dated as of ___________, 200_ (the "Trust Agreement");
WHEREAS, the Trust Agreement is being amended and restated as
of _______, 200_;
WHEREAS, the Trust may purchase Receivables from the Depositor from time
to time; each group of Receivables so purchased will support a separate series
of Notes and/or Certificate issued by the Trust from time to time;
WHEREAS, the Depositor and the Company may enter into separate Purchase
Agreements from time to time, pursuant to which the Depositor will assign to the
Company any and all of the Depositor's rights and interests with respect to the
receipt of amounts from the Reserve Account for a Series and with respect to any
Fixed Value Payments for a Series; and
WHEREAS, in connection therewith, the Company is willing to assume
certain obligations pursuant hereto;
NOW, THEREFORE, the Depositor, the Company and the Owner Trustee hereby
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Administration Agreement": with respect to a Series, as defined in
the related Supplement.
"Administratior" shall mean DaimlerChrysler Services North America LLC
and its successors and permitted assigns.
"Agreement" shall mean this Amended and Restated Trust Agreement and all
amendments hereof and supplements hereto, including each Supplement.
"Basic Documents" shall mean, with respect to a Series, the Purchase
Agreement, the Sale and Servicing Agreement, the Indenture, the Administration
Agreement and the Note
Depository Agreement, each as defined in the related Supplement, and the
other documents and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" or "Holder" shall mean a Person in whose name a
Trust Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Company": with respect to a Series, as defined in the related
Supplement.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at
______________________________, ______________, or at such other address as the
Owner Trustee may designate by notice to the Owners, the Depositor and the
Company, or the principal corporate trust office of any successor Owner Trustee
at the address designated by such successor Owner Trustee by notice to the
Owners, the Depositor and the Company.
"DCS" shall mean DaimlerChrysler Services North America LLC, a Michigan
limited liability company, and any successor in interest.
"Depositor" shall mean DCS in its capacity as depositor hereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture": with respect to a Series, as defined in the related
Supplement.
"Note Depository Agreement": with respect to a Series, as defined in
the related Supplement.
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"Opinion of Counsel" means one or more written opinions of counsel, who
may be an employee of or counsel to the Seller, the Company or the Servicer,
which counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or
the Rating Agencies, as applicable.
"Owner" shall mean each Holder of a Trust Certificate.
"Owner Trustee" shall mean _____________________________, a national
banking association, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.09 and shall initially be ________________________.
"Percentage Interest" means, as to any Trust Certificate of any Series,
the percentage interest, specified on the face thereof, in the distributions on
the Trust Certificates of such Series pursuant to this Agreement and the related
Supplement.
"Record Date" shall mean, with respect to any Distribution Date, the
15th day of the month preceding such Distribution Date.
"Sale and Servicing Agreement": with respect to a Series, as defined
in the related Supplement.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Series" shall mean any series of Notes and/or Trust Certificates, which
may include a class or classes of Notes and/or Trust Certificates.
"Series Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Series Owner Trust Estate": with respect to a Series, as defined in
the related Supplement.
"Subdivision" shall mean, with respect to a Series, a separate
subdivision of this Trust, within the meaning of Section 3806(b)(2) of the
Business Trust Statute, containing assets separate and apart from all other
assets of the Trust, all as specified in the related Supplement.
"Supplement" shall mean, with respect to a Series, a supplement to this
Agreement executed in connection with the issuance of a Series of Notes and/or
Trust Certificates.
"Treasury Regulations" shall mean regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
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"Trust Certificate" shall mean a certificate evidencing the beneficial
interest of an Owner in the Trust, or, if specified in such certificate, in a
separate Subdivision for a Series substantially in the form attached hereto as
Exhibit A.
SECTION 1.02. Other Definitional Provisions. (a) With respect to a
Series, capitalized terms used and not otherwise defined herein have the
meanings assigned to them in the Sale and Servicing Agreement for such Series
or, if not defined therein, in the Indenture for such Series.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended, modified
or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be known as
"DaimlerChrysler Auto Trust ____-_," in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
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SECTION 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Owners,
the Depositor and the Company.
SECTION 2.03. Purposes and Powers. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue one or more Series of Notes pursuant to the
related Indenture or Indentures and one or more Series of the Trust
Certificates pursuant to this Agreement and the related Supplement or
Supplements and to sell the Notes and the Trust Certificates;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificates of a Series, to purchase the Receivables for such Series,
to fund the Reserve Account, if any, for such Series, and to pay the
balance to the Depositor pursuant to the Sale and Servicing Agreement
for such Series;
(iii) to pay the organizational, start-up and transactional
expenses of the Trust for each Series;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate of a Series pursuant to the Indenture for such Series
and to hold, manage and distribute to the Owners pursuant to the terms
of the Sale and Servicing Agreement for such Series any portion of the
Trust Estate of such Series released from the Lien of, and remitted to
the Trust pursuant to, such Indenture;
(v) to enter into and perform its obligations under the Basic
Documents for each Series to which it is to be a party;
(vi) to sell the Fixed Value Payments of a Series to the
Depositor and, if requested by the Company for such Series (as
assignee of the Depositor), subsequently to acquire the related Fixed
Value Payments and to issue and sell the Fixed Value Securities;
(vii) to engage in those activities, including entering into
agreements, that are necessary or suitable to accomplish the foregoing
or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents of each
Series, to engage in such other activities as may be required in
connection with conservation of the Series Owner Trust Estate for such
Series and the making of distributions to the related Owners and the
related Noteholders and in respect of the Fixed Value Securities for
such Series.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents for a Series.
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SECTION 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Business Trust Statute.
SECTION 2.05. Initial Capital Contribution of Series Owner Trust
Estate. The Depositor hereby sells, assigns, transfers, conveys and sets over
to the Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Series Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold each Series Owner Trust Estate in trust upon and subject to
the conditions set forth herein and the related Supplement for the use and
benefit of the related Owners, subject to the obligations of the Trust under
the related Basic Documents. It is the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Statute and
that this Agreement constitute the governing instrument of such business
trust. It is the intention of the parties hereto that, solely for income and
franchise tax purposes, with respect to each Series and the related
Subdivision (i) so long as there is a sole Owner with respect to such
Subdivision, such Subdivision shall be treated as a security arrangement, with
the assets of such Subdivision being the Receivables and other assets held in
such Subdivision, the owner of such Receivables being the sole Owner and the
Notes of such Series being non-recourse debt of such sole Owner and (ii) if
there is more than one Owner, such Subdivision shall be treated as a
partnership for income and franchise tax purposes, with the assets of the
partnership being the related Receivables and other assets held by the Trust
in such Subdivision, the partners of the partnership being such Owners
(including the Company as assignee of the Depositor pursuant to the Purchase
Agreement for such Series, in its capacity as recipient of distributions from
the Reserve Account for such Series) and such Notes being debt of the
partnership. The parties agree that, unless otherwise required by appropriate
tax authorities, the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the
characterization of the Trust and its Subdivisions as provided in the
preceding sentence for such tax purposes. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.07. Liability of Owners. The Owners (including the Company)
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware.
SECTION 2.08. Title to Trust Property. Legal title to all of the
Series Owner Trust Estate of each Series shall be vested at all times in the
Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of a Series Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the
case may be.
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SECTION 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New
York, and payments will be made by the Trust only from Delaware or New York.
The only office of the Trust will be at the Corporate Trust Office in
Delaware.
SECTION 2.10. Subdivision. (a) Each Supplement for a Series will
create a separate Subdivision, which shall contain the Series Owner Trust
Estate for such Series, which will consist of the Receivables and other assets
specified in such Supplement. The holders of the Notes and Trust Certificates
of a Series shall only have an interest in and rights and claims to the
Subdivision for such Series and the Series Owner Trust Estate for such
Subdivision, and shall not have, and hereby agree that they will not have, any
interest in or rights or claims to the Subdivision for any other Series and
the related Series Owner Trust Estate. The holders of the Trust Certificates
of any Series shall not have legal title to any part of the Series Owner Trust
Estate related to such Series of Trust Certificates.
(b) Upon the written direction of the Depositor, the Owner Trustee and
the Depositor shall enter into one or more Supplements, providing for the
issuance of separate Series of Trust Certificates. Each Series shall be a
separate Series of the Trust within the meaning of Section 3806(b)(2) of the
Business Trust Statute. Separate and distinct records (including tax records)
shall be maintained for each Series and the Series Owner Trust Estate
associated with each such Series shall be maintained for each Series and the
Series Owner Trust Estate associated with each such Series shall be held in
the Trust and accounted for separately from the Series Owner Trust Estate of
any other Series. Except as specified in this Agreement or in any Supplement,
the Series Owner Trust Estate of any Series shall not be subject to claims,
debts, liabilities, expenses or obligations arising from or with respect to
the Trust or any other Series. The debts, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the related Series Owner Trust Estate only and not
against the assets of the Trust generally or any other Series. Notice of this
limitation on inter-series liabilities shall be set forth in the Certificate
of Trust (whether originally or by amendment) as filed with the Secretary of
State pursuant to the Business Trust Statute, and upon the giving of such
notice in the Certificate of Trust, the statutory provisions of Section 3804
of the Business Trust Statute relating to limitations on inter-series
liabilities (and the statutory effect under Section 3804 of setting forth such
notice in the Certificate Trust) shall become applicable to the Trust and each
Series of Trust Certificates.
(c) Each Supplement shall contain provisions requiring that neither
the Depositor nor any Holder of a Trust Certificate of the related Series of
Trust Certificates shall direct the Owner Trustee to (i) take any action that
would cause the Series Owner Trust Estate of the related Series to be
substantively consolidated into any other Series Owner Trust Estate of any
other Series such that it will have its separate existence disregarded in the
event of an insolvency event with respect to any Certificateholder of such
Series, the Trust or another Series, (ii) to commingle any of the Series Owner
Trust Estate of the related Series with the Series Owner Trust Estate of any
other Series, (iii) to maintain the corporate, financial and accounting books
and records and
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statements of the related Series, if any, in a manner such that they
cannot be separated from those of any other Series, (iv) to take any action
that would cause (a) the funds and other assets of the related Series, if any,
not be identifiable or the bank accounts, corporate records and books of
account, if any, of the related Series not to be inseparable from those of any
other Series and (b) the Trust to pay, other than from assets of the related
Series, any obligations or indebtedness of any kind incurred by the related
Series and payable by the Trust pursuant to this agreement, (v) to maintain
the assets and liabilities of the related Series so that they are not readily
ascertainable from those of any other Series and subject to segregation
without requiring substantial time or expense to effect and account for such
segregated assets and liabilities, (vi) to take any actions with respect to
the related Series except in its capacity as Owner Trustee in respect of such
Series. The Administrator shall have the right to take any action on behalf of
the Trust to enforce the foregoing provisions of each Supplement for the
benefit of the Trust and of each Series.
SECTION 2.11. Representations and Warranties of Depositor and Company.
(a) The Depositor hereby represents and warrants, as of the date on which this
Agreement is executed and delivered and as of each date on which a Supplement
is executed and delivered, to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
limited liability company in good standing under the laws of the State
of Michigan, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign limited liability company in good standing and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
shall require such qualifications.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and any Supplement and to carry out its terms;
the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trust and
the Depositor has duly authorized such sale and assignment and deposit
to the Trust by all necessary action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of organization or operating agreement of the Depositor,
or any indenture, agreement or other instrument to which the Depositor
is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents for a Series); nor violate any law or,
to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
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(v) To the Depositor's best knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (A)
asserting the invalidity of this Agreement or any Supplement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination or
ruling that might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any Supplement.
(vi) The representations and warranties of the Company and the
Depositor in Sections 3.01 and 3.02 of the Purchase Agreement for each
Series are true and correct.
(b) The Company hereby represents and warrants, as of the date on which
this Agreement is executed and delivered and as of each date on which a
Supplement is executed and delivered, to the Owner Trustee that:
(i) The Company has been duly organized and is validly existing
as a [limited liability company] in good standing under the laws of
the jurisdiction of its organization, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
(ii) The Company is duly qualified to do business as a foreign
[limited liability company] in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
shall require such qualifications.
(iii) The Company has the power and authority to execute and
deliver this Agreement and any Supplement and to carry out its terms;
the Company has full power and authority to purchase the Trust
Certificates; and the execution, delivery and performance of this
Agreement and any Supplement has been duly authorized by the Company
by all necessary action.
(iv) The consummation of the transactions contemplated by this
Agreement and any Supplement and the fulfillment of the terms hereof
and thereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of organization or
operating agreement of the Company, or any indenture, agreement or
other instrument to which the Company is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic
Documents for a Series); nor violate any law or, to the best of the
Company's knowledge, any order, rule or regulation applicable to the
Company of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Company or its properties.
(v) There are no proceedings or investigations pending or, to
the Company's best knowledge, threatened before any court, regulatory
body, administrative agency or other
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governmental instrumentality having jurisdiction over the
Company or its properties: (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement.
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.01. Initial Ownership; Beneficial Interests in the Trust.
(a) Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.05 and until the issuance of the Trust Certificates for
a Series, the Depositor shall be the sole beneficiary of the Trust.
(b) Each holder of a Trust Certificate of a Series shall hold an
exclusive, divided beneficial interest in the Series Owner Trust Estate of
such Series.
SECTION 3.02. The Trust Certificates. The Trust Certificates of a
Series shall be issued in minimum denominations of a one percent Percentage
Interest in the related Subdivision. A Trust Certificate shall be executed on
behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee. Trust Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Trust, shall be validly
issued and entitled to the benefit of this Agreement and the related
Supplement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of authentication
and delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a Certificateholder
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder and the related Supplement upon such transferee's
acceptance of a Trust Certificate duly registered in such transferee's name
pursuant to Section 3.04.
SECTION 3.03. Authentication of Trust Certificates. On the Closing
Date, the Owner Trustee shall cause the Trust Certificates of a Series in an
aggregate Percentage Interest equal to 100% to be executed on behalf of the
Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president, any vice
president, secretary or any assistant treasurer, without further corporate
action by the Depositor, in authorized denominations. No Trust Certificate
shall entitle its Holder to any benefit under this Agreement or the related
Supplement or be valid for any purpose unless there shall appear on such Trust
Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Owner Trustee or ________________________,
as the Owner Trustee's authenticating agent, by manual signature; such
authentication shall constitute conclusive evidence that such Trust
Certificate shall have been duly authenticated and delivered hereunder. All
Trust Certificates shall be dated the date of their authentication.
10
SECTION 3.04. Registration of Transfer and Exchange of Trust
Certificates; Limitations on Transfer. The Certificate Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 3.08,
a Certificate Register for each Series in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall provide for the
registration of Trust Certificates of such Series and of transfers and
exchanges of such Trust Certificates as herein provided.
________________________ shall be the initial Certificate Registrar.
Unless otherwise provided in the related Supplement, the Trust
Certificates of a Series will not be registered under the Securities Act and
will not be listed on any exchange. No transfer of a Trust Certificate shall be
made unless such transfer is made pursuant to an effective registration
statement under the Securities Act and any applicable state securities laws or
is exempt from the registration requirements under the Securities Act and such
state securities laws. In the event that a transfer is to be made in reliance
upon an exemption from the Securities Act and state securities laws, in order to
assure compliance with the Securities Act and such laws, the Holder desiring to
effect such transfer and such Holder's prospective transferee shall each certify
to the Owner Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit C (the "Transferor Certificate")
and either Exhibit D (the "Investment Letter") or Exhibit E (the "Rule 144A
Letter"). Except in the case of a transfer as to which the proposed transferee
has provided a Rule 144A Letter, there shall also be delivered to the Owner
Trustee an Opinion of Counsel that such transfer may be made pursuant to an
exemption from the Securities Act and state securities laws, which Opinion of
Counsel shall not be an expense of the Trust or the Owner Trustee; provided that
such Opinion of Counsel in respect of the applicable state securities laws may
be a memorandum of law rather than an opinion if such counsel is not licensed in
the applicable jurisdiction. The Depositor shall provide to any Holder of a
Trust Certificate and any prospective transferee designated by any such Holder,
information regarding the Trust Certificates and the Receivables and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Trust Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. Each Holder of a Trust Certificate desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with federal and state
securities laws. The Owner Trustee shall cause each Trust Certificate to contain
a legend in the form set forth on the form of Trust Certificate attached hereto
as Annex A.
Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.08 and subject to the
satisfaction of the preceding paragraph, the Owner Trustee shall execute,
authenticate and deliver (or shall cause _____ ___________________ as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Trust Certificates of the same Series
in authorized denominations of a like aggregate Percentage Interest dated the
date of authentication by the Owner Trustee or any authenticating agent;
provided that, unless otherwise specified in the related Supplement, prior to
such execution, authentication and delivery, the Owner Trustee shall have
received an Opinion of Counsel to the effect that the proposed transfer will not
cause the Trust to be characterized as an association (or a publicly traded
partnership) taxable as a corporation or alter the tax characterization of the
Notes of such Series for federal income tax
11
purposes or Michigan income and single business tax purposes. At the
option of a Holder, Trust Certificates may be exchanged for other Trust
Certificates of such Series of authorized denominations of a like aggregate
Percentage Interest upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Trust Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates of a Series for a period of 15
days preceding the due date for any payment with respect to the Trust
Certificates of such Series.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and
(b) there shall be delivered to the Certificate Registrar and the Owner
Trustee such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust Certificate has
been acquired by a bona fide purchaser, the Owner Trustee on behalf of the
Trust shall execute and the Owner Trustee or [______________________], as the
Owner Trustee's authenticating agent, shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of the same Series of like tenor and
denomination. In connection with the issuance of any new Trust Certificate
under this Section, the Owner Trustee or the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Certificate
of a Series issued pursuant to this Section shall constitute conclusive
evidence of ownership in the related Subdivision, as if originally issued,
whether or not the lost, stolen or destroyed Trust Certificate shall be found
at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose name
any Trust Certificate is registered in the Certificate Register as the owner
of such Trust Certificate for the purpose of receiving distributions pursuant
to Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
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SECTION 3.07. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Owner Trustee
of a written request therefor from the Servicer or the Depositor, a list, in
such form as the Servicer or the Depositor may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. If a Certificateholder of a Series applies in writing to the Owner
Trustee, and such application states that the applicant desires to communicate
with other Certificateholders of such Series with respect to their rights
under this Agreement and the related Supplement or under the Trust
Certificates of such Series, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicant
access during normal business hours to the current list of Certificateholders
of such Series. Each Holder, by receiving and holding a Trust Certificate,
shall be deemed to have agreed not to hold any of the Depositor, the Company,
the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.08. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the Basic Documents
may be served. The Owner Trustee initially designates _________
_________________________________________________________ as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Company and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders of a Series from the Certificate
Distribution Account of such Series pursuant to the related Supplement and
shall report the amounts of such distributions to the Owner Trustee. Any
Paying Agent shall have the revocable power to withdraw funds from a
Certificate Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and remove the
Paying Agent if the Owner Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent initially shall be__________________,
and any co-paying agent chosen by _______________________ and acceptable to
the Owner Trustee. ________________________ shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Owner Trustee. In the event
that ________________________ shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which successor
shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Owner Trustee that, as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal
of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Section 7.01, 7.03, 7.04
and 8.01 shall apply to the Owner Trustee
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also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 3.10. Fixed Value Securities. Pursuant to the Sale and
Servicing Agreement and the Purchase Agreement for a Series, promptly
following the sale of the Standard Receivables and Fixed Value Receivables for
such Series to the Trust on the Closing Date, the Trust will sell to the
Depositor the related Fixed Value Payments in accordance with such Sale and
Servicing Agreement. Neither the Depositor nor the Company (as assignee of the
Depositor) shall transfer such Fixed Value Payments to any Person other than
the Trust and except as contemplated by such Purchase Agreement. At any time
after the Trust sells the Fixed Value Payments of a Series to the Depositor,
at the option of the Company (as assignee of the Depositor) and upon 10 days
prior written notice to the Owner Trustee and the Indenture Trustee for such
Series, the Company will be permitted to sell to the Trust, and the Trust
shall be obligated to purchase from the Company (subject to the availability
of funds), all or any portion of such Fixed Value Payments due under the
Receivables for such Series, subject to the terms and conditions of such Sale
and Servicing Agreement. Upon any such sale, (i) the Depositor, the Company
and the Owner Trustee will enter into an amendment to this Agreement and the
related Supplement to provide for, at the election of the Company, the
issuance of certificates representing ownership interests in the related
Subdivision to the extent of such Fixed Value Payments due under such
Receivables or the issuance of indebtedness by the Trust secured by such Fixed
Value Payments due under such Receivables and to make any other provisions
herein that are necessary or desirable in connection therewith and (ii) the
Owner Trustee and the Depositor will enter into any other agreements or
instruments related thereto as may be requested by the Company; provided,
however, that the Owner Trustee may, but shall not be obligated to, enter into
any such amendment, agreement or instrument that affects the Owner Trustee's
own rights, duties or immunities under this Agreement; and provided, further,
that the obligation of the Owner Trustee to enter into any such amendment or
other agreement or instrument is subject to the following conditions
precedent:
(a) Such amendment and other agreements and instruments, in forms
satisfactory to the Owner Trustee and, in the case of amendments or agreements
to be executed and delivered by the Indenture Trustee for such Series, such
Indenture Trustee, shall have been executed by each other party thereto and
delivered to the Owner Trustee;
(b) The Company shall have delivered to the Owner Trustee and such
Indenture Trustee an Officer's Certificate and an Opinion of Counsel to the
effect that each condition precedent (including the requirement with respect
to all required filings) provided by this Section has been complied with and
such amendment or other agreement or instrument is authorized or permitted by
this Agreement;
(c) The Rating Agency Condition shall have been satisfied with respect
to such sale and issuance;
(d) Such sale and issuance and such amendment or other agreement or
instrument shall not adversely affect in any material respect the interest of
any Noteholder or Certificateholder of
14
such Series, and the Company shall have provided to the Owner Trustee and such
Indenture Trustee an Officer's Certificate to such effect;
(e) The Owner Trustee and such Indenture Trustee shall have received
an Opinion of Counsel to the effect that such sale and issuance will not have
any material adverse tax consequence to the Trust, the related Subdivision or
to any Noteholder or Certificateholder of such Series; and
(f) All filings and other actions required to continue the first
perfected interest of the Trust in the Series Owner Trust Estate and of such
Indenture Trustee in the related Trust Estate shall have been duly made or
taken by the Company.
SECTION 3.11. Definitive Trust Certificates. Unless otherwise provided
in the related Supplement, the Trust Certificates of a Series, upon original
issuance, will be issued in definitive, fully registered form.
ARTICLE IV
Actions by Owner Trustee
------------------------
SECTION 4.01. Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters with respect to a Series and the related
Subdivision, the Owner Trustee shall not take action unless at least 30 days
before the taking of such action, the Owner Trustee shall have notified the
Certificateholders of such Series in writing of the proposed action and the
Owners shall not have notified the Owner Trustee in writing prior to the 30th
day after such notice is given that such Owners have withheld consent or
provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Receivables) and
the compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection
of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business
Trust Statute);
(c) the amendment of the Indenture for such Series by a supplemental
indenture in circumstances where the consent of any related Noteholder is
required;
(d) the amendment of the Indenture for such Series by a supplemental
indenture in circumstances where the consent of any related Noteholder is not
required and such amendment materially adversely affects the interests of the
Owners of such Series;
(e) the amendment, change or modification of the Administration
Agreement for such Series, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would not
materially adversely affect the interests of the Owners of such Series; or
15
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee for such Series or pursuant to
this Agreement of a successor Certificate Registrar for such Series, or the
consent to the assignment by such Note Registrar, Paying Agent or Indenture
Trustee or Certificate Registrar of its obligations under the Indenture for
such Series or this Agreement, as applicable.
SECTION 4.02. Action by Owners with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the direction of the
Owners, to (a) remove the Administrator for a Series under the related
Administration Agreement pursuant to the terms thereof, (b) appoint a
successor Administrator pursuant to the terms of an Administration Agreement,
(c) remove the Servicer under a Sale and Servicing Agreement pursuant to the
terms thereof or (d) except as expressly provided in the Basic Documents of a
Series, sell the related Receivables after the termination of the related
Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the Owners of the
related Series.
SECTION 4.03. Action by Owners with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Owners and the delivery to the Owner Trustee by each such Owner of a
certificate certifying that such Owner reasonably believes that the Trust is
insolvent.
SECTION 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents of any Series
or would be contrary to Section 2.03, nor shall the Owner Trustee be obligated
to follow any such direction, if given.
SECTION 4.05. Majority Control. Except as expressly provided herein,
any action that may be taken by the Owners of a Series under this Agreement
and the related Supplement may be taken by the Holders of Trust Certificates
of such Series evidencing not less than a majority of the Percentage Interests
evidenced by such Trust Certificates. Except as expressly provided herein or
the related Supplement, any written notice of the Owners of a Series delivered
pursuant to this Agreement and the related Supplement shall be effective if
signed by Holders of Trust Certificates of such Series evidencing not less
than a majority of the Percentage Interests evidenced by the Trust
Certificates of such Series at the time of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account. The Owner Trustee, for
the benefit of the Certificateholders of each Series, shall establish and
maintain in the name of the Trust an Eligible Deposit Account for a single
Series or two or more Series, as specified in the related Supplements (the
"Series Certificate Distribution Account"), bearing a designation clearly
16
indicating that the funds deposited therein are held solely for the benefit of
the Certificateholders of the specified Series.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in each Series Certificate Distribution
Account and in all proceeds thereof. Except as otherwise expressly provided
herein or the related Supplement, each Series Certificate Distribution Account
shall be under the sole dominion and control of the Owner Trustee solely for the
benefit of the Certificateholders of the related Series. If, at any time, a
Series Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Owner Trustee (or the Depositor on behalf of the Owner Trustee, if
such Certificate Distribution Account is not then held by the Owner Trustee or
an affiliate thereof) shall within 10 Business Days (or such longer period, not
to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Series Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new Series
Certificate Distribution Account.
SECTION 5.02. Application of Trust Funds. (a) The holders of any
Series of Trust Certificates shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
the provisions of this Article V.
(b) With respect to each Series on each Distribution Date, the Owner
Trustee will distribute to Certificateholders of such Series, on the basis of
the Percentage Interest evidenced by their Trust Certificates, amounts
deposited in the Series Certificate Distribution Account for such Series
pursuant to the applicable provisions of the Sale and Servicing Agreement for
such Series with respect to such Distribution Date.
(c) On each Distribution Date for a Series, the Owner Trustee shall
send to each Certificateholder of such Series the statement or statements
provided to the Owner Trustee by the Servicer pursuant to the applicable
provisions of the Sale and Servicing Agreement for such Series with respect to
such Distribution Date.
(d) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to an Owner, such tax shall reduce the
amount otherwise distributable to such Owner in accordance with this Section.
The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Owners of a Series sufficient funds from the
related Series Certificate Distribution Account for the payment of any tax
that is legally owed by the Trust in respect of such Owners (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings and withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to an Owner shall be treated as cash
distributed to such Owner at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Owner), the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this paragraph.
SECTION 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding Record
Date by wire transfer, in immediately available funds, to the
17
account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Distribution Date, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
SECTION 5.04. No Segregation of Moneys; No Interest. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
related Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.05. Accounting and Reports to Owners, Internal Revenue
Service and Others. The Owner Trustee shall deliver to each Owner of a Series
such information, reports or statements with respect to such Series as may be
required by the Code and applicable Treasury Regulations and as may be
required to enable each Owner to prepare its federal and state income tax
returns. Unless otherwise provided in respect of a Series in the related
Supplement, consistent with the Trust's characterization for tax purposes, as
a security arrangement for the issuance of non-recourse debt, no federal
income tax return shall be filed on behalf of the Trust unless either (i) the
Owner Trustee shall receive an Opinion of Counsel that, based on a change in
applicable law occurring after the date hereof, or as a result of a transfer
by the Company permitted by Section 3.04, the Code requires such a filing or
(ii) the Internal Revenue Service shall determine that the Trust, or a
Subdivision, is required to file such a return. Notwithstanding the preceding
sentence, the Owner Trustee shall file Internal Revenue Service Form 8832 and
elect for the Trust and each Subdivision to be treated as a domestic eligible
entity with a single owner that is disregarded as a separate entity, which
election shall remain in effect so long as the Company or any other party is
the sole Owner. In the event that the Trust is required to file tax returns,
the Owner Trustee shall prepare or shall cause to be prepared any tax returns
required to be filed by the Trust and shall remit such returns to the Company
(or if the Company no longer owns any Certificates, the Owner designated for
such purpose by the Company to the Owner Trustee in writing) at least five (5)
days before such returns are due to be filed. The Company (or such designee
Owner, as applicable) shall promptly sign such returns and deliver such
returns after signature to the Owner Trustee and such returns shall be filed
by the Owner Trustee with the appropriate tax authorities. In no event shall
the Owner Trustee or the Company (or such designee Owner, as applicable) be
liable for any liabilities, costs or expenses of the Trust or the Noteholders
arising out of the application of any tax law, including federal, state,
foreign or local income or excise taxes or any other tax imposed on or
measured by income (or any interest, penalty or addition with respect thereto
or arising from a failure to comply therewith) except for any such liability,
cost or expense attributable to any act or omission by the Owner Trustee or
the Company (or such designee Owner, as applicable), as the case may be, in
breach of its obligations under this Agreement.
18
ARTICLE VI
Authority and Duties of Owner Trustee
-------------------------------------
SECTION 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents for each Series to which
the Trust is to be a party and each certificate or other document attached as
an exhibit to or contemplated by the Basic Documents of a Series to which the
Trust is to be a party and any amendment or other agreement or instrument
described in Section 3.10, in each case, in such form as the Company for the
related Series shall approve, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents of each Series. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
recommends with respect to the Basic Documents for each Series.
SECTION 6.02. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement, each Supplement and the Basic
Documents for each Series to which the Trust is a party and to administer the
Trust in the interest of the Owners, subject to the Basic Documents for each
Series and in accordance with the provisions of this Agreement and each
Supplement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under a
Supplement and the Basic Documents for each Series to the extent the
Administrator has agreed in the Administration Agreement for the related
Series to perform any act or to discharge any duty of the Owner Trustee
hereunder or under such Supplement and any Basic Document, and the Owner
Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement
for the related Series.
SECTION 6.03. Action upon Instruction. (a) Subject to Article IV and
in accordance with the terms of the Basic Documents of a Series and the
related Supplement, the Owners of such Series may by written instruction
direct the Owner Trustee in the management of the related Subdivision. Such
direction may be exercised at any time by written instruction of the Owners
pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Supplement or related Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of such Supplement or
Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
under any Supplement or related Basic Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Owners of the related Series requesting instruction as
to the course of action to be adopted, and to the extent the Owner Trustee
acts in good faith in accordance with any written instruction of such Owners
received, the Owner Trustee shall not be liable on account of such action to
any Person. If the Owner Trustee shall not have received
19
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement, the
related Supplement, or the related Basic Documents, as it shall deem to be in
the best interests of the Owners of such Series, and shall have no liability
to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Supplement or related
Basic Document or any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in
the event that this Agreement or a Supplement permits any determination by the
Owner Trustee or is silent or is incomplete as to the course of action that
the Owner Trustee is required to take with respect to a particular set of
facts, the Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the Owners of the related Series requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the
Owner Trustee shall not be liable, on account of such action or inaction, to
any Person. If the Owner Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the related
Supplement and Basic Documents, as it shall deem to be in the best interests
of the Owners of the related Series, and shall have no liability to any Person
for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Series Owner Trust Estate of any Series, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby or by any Supplement to which the Owner
Trustee is a party, except as expressly provided by the terms of this
Agreement or such Supplement or in any document or written instruction
received by the Owner Trustee pursuant to Section 6.03; and no implied duties
or obligations shall be read into this Agreement, any Supplement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or file
any Securities and Exchange Commission filing for the Trust or any Subdivision
or to record this Agreement, any Supplement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any
part of any Series Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of such Series Owner Trust Estate.
SECTION 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of Series Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement or the related Supplement, (ii) in
20
accordance with the related Basic Documents and (iii) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section
6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust or any Subdivision becoming taxable as a corporation for
federal income tax purposes. The Owners shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
ARTICLE VII
Concerning Owner Trustee
------------------------
SECTION 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement and
each Supplement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of any Series Owner Trust Estate upon the
terms of this Agreement and the related Supplement and Basic Documents. The
Owner Trustee shall not be answerable or accountable hereunder or under the
related Supplement and the related Basic Document under any circumstances,
except (i) for its own willful misconduct or negligence or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The Owner Trustee shall not be liable for any error of judgment
made in good faith by the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Owner;
(c) No provision of this Agreement, any Supplement or any Basic
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or
powers hereunder or under any Supplement or any Basic Document if the Owner
Trustee shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes of any Series;
(e) The Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or any Supplement or for the due
execution hereof by the Depositor or the Company or for the form, character,
genuineness, sufficiency, value or validity of any Series Owner Trust Estate,
or for or in respect of the validity or sufficiency of any Basic Documents,
other than the certificate of authentication on the Trust Certificates of any
Series, and the Owner Trustee shall in no event assume or incur any liability,
duty or obligation to any
21
Noteholder or to any Owner, other than as expressly provided for herein or
expressly agreed to in the related Basic Documents;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Administrator, DCS, as Seller or Depositor, the Company, the
Indenture Trustee or the Servicer of any Series under any of the related Basic
Documents or otherwise, and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement, any
Supplement or any Basic Documents that are required to be performed by the
Administrator under the related Administration Agreement, the Indenture
Trustee under the related Indenture or the Servicer or DCS, as Depositor or as
Seller, under the related Sale and Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or any Supplement, or to
institute, conduct or defend any litigation under this Agreement or any
Supplement or otherwise or in relation to this Agreement, any Supplement or
any Basic Document, at the request, order or direction of any of the Owners,
unless such Owners have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement, any
Supplement or any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Owners of a Series, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents for such Series.
SECTION 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants, as of the date on which this Agreement is executed
and delivered and as of each date on which a Supplement is executed and
delivered, to the Depositor and the Company and for the benefit of the Owners
that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and such Supplement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and such Supplement, and this
Agreement and such Supplement have been executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement and such
Supplement on its behalf.
(c) Neither the execution or the delivery by it of this Agreement and
such Supplement, nor the consummation by it of the transactions contemplated
hereby or thereby, nor compliance by it with any of the terms or provisions
hereof or thereof will contravene any federal or Delaware law, governmental
rule or regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under its
charter
22
documents or bylaws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 7.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact
or matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement, any
Supplement or any Basic Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with any
of them, and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled Persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement, any Supplement or any Basic
Document.
SECTION 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created ____________________
acts solely as Owner Trustee hereunder and under each Supplement and not in
its individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Basic Document shall look only to the applicable Series Owner Trust Estate for
payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Trust Certificates or
Receivables. The recitals contained herein and in any Supplement and the
related Trust Certificates (other than the signature and countersignature of
the Owner Trustee on the Trust Certificates) shall be taken as the statements
of the Depositor and the Company, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Supplement or any Basic Document or of the Trust Certificates of any Series
(other than the signature and countersignature of the Owner Trustee on the
Trust Certificates) or the Notes of any series, or of any Receivable or
related documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any Receivable, or the perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of any
Series Owner Trust Estate or its ability to generate the payments to be
distributed to the related
23
Certificateholders under this Agreement or the related Supplement or
the Noteholders under the Indenture for the related Series, including, without
limitation: the existence, condition and ownership of any Financed Vehicle;
the existence and enforceability of any insurance thereon; the existence and
contents of any Receivable on any computer or other record thereof; the
validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor, the Company or
the Servicer with any warranty or representation made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation, or any action of the Administrator, the Indenture Trustee or
the Servicer for any Series or any subservicer taken in the name of the Owner
Trustee.
SECTION 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Company, the Administrator, the Indenture Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner
Trustee.
SECTION 7.08. Pennsylvania Motor Vehicle Sales Finance Act Licenses.
The Owner Trustee, in its individual capacity, shall use its best efforts to
maintain, and the Owner Trustee, as Owner Trustee, shall cause the Trust to
use its best efforts to maintain, the effectiveness of all licenses required
under the Pennsylvania Motor Vehicle Sales Finance Act in connection with this
Agreement, each Supplement and the Basic Documents and the transactions
contemplated hereby and thereby until such time as the Trust shall terminate
in accordance with the terms hereof.
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Depositor and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Depositor for its other reasonable expenses hereunder and under each
Supplement, including the reasonable compensation, expenses and disbursements
of such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder.
SECTION 8.02. Indemnification. The Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee or any Indemnified
Party in any way relating to or arising out of this Agreement, any Supplement,
any Basic Documents, any Series Owner Trust Estate, the administration of any
Series Owner Trust Estate or the action or inaction of the Owner Trustee
24
hereunder or under any Supplement, except only that the Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement or any Supplement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject to the approval of
the Depositor, which approval shall not be unreasonably withheld.
SECTION 8.03. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of any
Series Owner Trust Estate immediately after such payment.
ARTICLE IX
Dissolution and Termination of Trust Agreement
----------------------------------------------
SECTION 9.01. Dissolution of the Trust and Termination of Trust
Agreement. (a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution by
the Owner Trustee of all moneys or other property or proceeds of each Series
Owner Trust Estate in accordance with the terms of the related Supplement,
Indenture, Sale and Servicing Agreement and Article V. The bankruptcy,
liquidation, dissolution, death or incapacity of any Owner shall not (x)
operate to terminate this Agreement, the Trust or the related Supplement or
Subdivision or (y) entitle such Owner'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 such Series Owner
Trust Estate or Subdivision or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), none of the Depositor, the
Company or any Owner shall be entitled to revoke or terminate the Trust or any
Subdivision.
(c) Notice of any dissolution and termination of the Trust, specifying
the Distribution Date upon which Certificateholders of each Series then
outstanding shall surrender their Trust Certificates to the Paying Agent for
payment of the final distribution and cancellation, shall be given by the
Owner Trustee by letter to such Certificateholders mailed within five Business
Days of receipt of notice of such termination from the Servicer given pursuant
to each related Sale and Servicing Agreement, stating (i) the Distribution
Date upon or with respect to which final payment of such Trust Certificates
shall be made upon presentation and surrender of such Trust Certificates at
the office of the Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon
presentation and surrender of such Trust Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to
the Certificate Registrar (if other than the Owner Trustee) and the Paying
Agent at the time such notice is given to such Certificateholders. Upon
presentation and surrender of such Trust Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.02.
25
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable
escheat laws, any funds remaining in the Trust after exhaustion of such remedies
shall be distributed by the Owner Trustee to the Company for the related Series.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
------------------------------------------------------
SECTION 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent that has) time deposits that are
rated at least A-1 by Standard & Poor's and P-1 by Moody's. If such
corporation shall publish reports of condition at least annually pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Owner Trustee may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be
26
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may remove
the Owner Trustee. If the Administrator shall remove the Owner Trustee under
the authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee, and
shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the Administrator
and the predecessor Owner Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, each Indenture Trustee, the Noteholders of each Series and
the Rating Agencies. If the Administrator shall fail to mail such notice within
10 days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation
27
shall be eligible pursuant to Section 10.01 and, provided, further, that the
Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of any Series Owner Trust Estate or any Financed Vehicle may at the time
be located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Administrator and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or separate trustees,
of all or any part of any Series Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust or any part thereof and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor Owner Trustee pursuant to Section
10.01 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to any Series Owner
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement or any
Supplement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording
28
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement or the related Supplement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Supplements and Amendments. This Agreement and any
Supplement may be amended by the Depositor, the applicable Company and the
Owner Trustee, with prior written notice to the Rating Agencies, without the
consent of any of the Noteholders or the Certificateholders of any Series, to
cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders of any Series;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement and any Supplement may also be amended from time to time
by the Depositor, the Company and the Owner Trustee, with prior written notice
to the Rating Agencies, with the consent of the Holders (as defined in the
related Indenture) of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes of each Series adversely affected thereby and
the consent of the Holders of Trust Certificates evidencing not less than a
majority of the Percentage Interests evidenced by the Trust Certificates of each
Series adversely affected thereby, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables of a Series or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders of a Series or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes of a Series or of the Percentage Interests
evidenced by the Trust Certificates of a Series required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes and
Trust Certificates of a Series.
Promptly after the execution of any such amendment or consent in respect
of a Series, the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder of such Series,
the Indenture Trustee of such Series and each of the Rating Agencies.
29
It shall not be necessary for the consent of Certificateholders or
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. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement, any
Supplement or any Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
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.
Prior to the execution of any amendment to this Agreement, any
Supplement or the Certificate of Trust, the Owner Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee may,
but shall not be obligated to, enter into any such amendment that affects the
Owner Trustee's own rights, duties or immunities under this Agreement, any
Supplement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement, any Supplement or any amendment of any other agreement to which the
Issuer is a party, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel to the effect that such amendment
is authorized or permitted by the related Basic Documents and that all
conditions precedent in such Basic Documents for the execution and delivery
thereof by the Trust or the Owner Trustee, as the case may be, have been
satisfied.
SECTION 11.02. No Legal Title to any Series Owner Trust Estate in
Owners. The Owners shall not have legal title to any part of any Series Owner
Trust Estate. The Owners shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and IX and the related Supplement. No transfer, by operation of law
or otherwise, of any right, title or interest of the Owners of a Series to and
in their ownership interest in the related Series Owner Trust Estate shall
operate to terminate this Agreement or the related Supplement or the trusts
hereunder or thereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of such Series Owner Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Subject to Section
2.10 the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Company, the Owners, the Administrator and, to the
extent expressly provided herein, each Indenture Trustee and the Noteholders
of each Series, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in any Series Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust
Office; if to the
30
Depositor, addressed to DaimlerChrysler Services North America LLC,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CIMS ▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention
of Assistant Secretary; if to the Company, addressed to [___________],
[______________________________________]; Attention of Assistant Secretary;
or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the related Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the Depositor, the Company and its permitted assignees, the Owner Trustee and
its successors and each Owner and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Owner shall bind the successors and assigns of such
Owner.
SECTION 11.08. Covenants of Company. In the event that any litigation
with claims in excess of $1,000,000 to which the Company is a party which
shall be reasonably likely to result in a material judgment against the
Company that the Company will not be able to satisfy shall be commenced by an
Owner, during the period beginning nine months following the commencement of
such litigation and continuing until such litigation is dismissed or otherwise
terminated (and, if such litigation has resulted in a final judgment against
the Company, such judgment has been satisfied), the Company shall not make any
distribution on or in respect of its membership interests to any of its
members, or repay the principal amount of any indebtedness of the Company held
by DCS, unless (i) after giving effect to such distribution or repayment, the
Company's liquid assets shall not be less than the amount of actual damages
claimed in such litigation or (ii) the Rating Agency Condition shall have been
satisfied with respect to any such distribution or repayment. The Company will
not at any time institute against the Trust any bankruptcy proceedings under
any United States federal or state bankruptcy or similar law in connection
with any obligations relating to the Trust Certificates, the Notes, the Trust
Agreement or any of the Basic Documents.
SECTION 11.09. No Petition. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee of each Series and each Noteholder of each Series, by
accepting the benefits of this Agreement, hereby
31
covenant and agree that they will not at any time institute against the
Company or the Trust, or join in any institution against the Company or
the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates of any Series, the Notes of any Series, this Agreement
or any of the Basic Documents for any Series.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the related Subdivision only
and do not represent interests in or obligations of the Depositor, the
Servicer, the Company, the Administrator, the Owner Trustee, the Indenture
Trustee of any Series or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement and the related Supplement, the related Trust
Certificates or the related Basic Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. Trust Certificate Transfer Restrictions. Unless
otherwise specified in any Supplement, the Trust Certificates of any Series
may not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding a
Trust Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 11.14. Depositor Payment Obligation. The Depositor shall be
responsible for payment of the Administrator's fees under the Administration
Agreement for any Series and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder. In
addition, the Depositor shall be responsible for the payment of all fees and
expenses of the Trust, the Owner Trustee and the Indenture Trustee for each
Series paid by any of them in connection with any of their obligations under
the related Basic Documents to obtain or maintain any required license under
the Pennsylvania Motor Vehicle Sales Finance Act.
32
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
DaimlerChrysler Services North America
LLC, as Depositor
By:
--------------------------------------
Name:
Title:
[__________________________]
By:
By:
------------------------------------
Name:
Title:
[_____________________________]
not in its individual capacity but
solely as Owner Trustee
By:
-------------------------------------
Name:
Title:
33
EXHIBIT A
Form of Trust Certificate
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN
SECTION 3.04 OF THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE IS ISSUED (A
COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE OWNER TRUSTEE OR UPON
REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN INVESTMENT LETTER IN
WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.
NUMBER Percentage
R-__ Interest: _______%
DAIMLERCHRYSLER AUTO TRUST ___-_, Series ____-_
ASSET BACKED CERTIFICATE, Series ____-_
evidencing a fractional undivided interest in the Subdivision of the Trust for
Series 200_-_, as defined below, the property of which includes a pool of retail
installment sale contracts and the Amortizing Payments on the Fixed Value
Receivables (each, as defined herein) secured by new and used automobiles and
light duty trucks.
(This Trust Certificate does not represent an interest in or obligation of
DaimlerChrysler Services North America LLC or any of its affiliates, except to
the extent described below.)
THIS CERTIFIES THAT _______________________________ is the registered
owner of a ________________ PERCENT nonassessable, fully-paid, undivided
percentage interest in the Subdivision for Series 200_-_ of DaimlerChrysler Auto
Trust ____-_ (the "Trust"), formed by DaimlerChrysler Services North America
LLC, a Michigan limited liability (the "Depositor"), and [DaimlerChrysler Retail
Receivables LLC, a Michigan limited liability company] (the "Company").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
-----------------------------, -----------------------------,
as Owner Trustee or as Owner Trustee
by:________________________,
as Authenticating Agent
by: __________________________
Authorized Signatory
by:
-------------------------------
Authorized Signatory
A-2
The Trust was created pursuant to a Trust Agreement dated as of ________
__, 200_, as amended and restated by an Amended and Restated Trust Agreement
dated as of ________, 200_ (as so amended and restated and further amended or
supplemented from time to time, the "Trust Agreement"), among the Depositor, the
Company and ____________________, as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. The
Subdivision for Series 200_-_ of the Trust (the "Series 200_-_ Subdivision") was
created pursuant to the Supplement (the "Series 200_-_ Supplement") dated
___________, 200_-_ to the Trust Agreement. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement, the Series 200_-_ Supplement or the Sale and Servicing
Agreement dated as of _______, 200_ (as amended and supplemented from time to
time, the "Sale and Servicing Agreement"), between the Trust and the Depositor,
as seller and as servicer (in such capacity, the "Servicer"), as applicable.
This Certificate is one of the duly authorized certificates designated
as "Asset Backed Certificates, Series 200_-_" (herein called the "Series 200_-_
Trust Certificates"). Also issued under an Indenture dated as of _______, 200_
(the "Indenture"), between the Trust and [______________], as indenture trustee,
are the five classes of Notes designated as "Class A-1 ____% Asset Backed
Notes," "Class A-2 ____% Asset Backed Notes," "Class A-3 ____% Asset Backed
Notes," "Class A-4 ____% Asset Backed Notes" and "Class B ____% Asset Backed
Notes" (collectively, the "Series 200_-_ Notes"). This Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Series 200_-_ Trust
Certificate by virtue of its acceptance hereof assents and by which such Holder
is bound. The property of the Series 200_-_ Subdivision consists of a pool of
retail installment sale contracts for new and used automobiles and light duty
trucks and the Amortizing Payments on the Fixed Value Receivables (collectively,
the "Receivables"), all monies received on or after ________ __, 200_, security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, proceeds from claims on certain insurance policies and certain
other rights under the Trust Agreement, the Series 200_-_ Supplement and the
Sale and Servicing Agreement and all proceeds of the foregoing. The term "Fixed
Value Receivables" shall mean retail sale contracts secured by new automobiles
or light duty trucks with a series of fixed level payment monthly installments
(the "Amortizing Payments") and a final fixed value payment that is greater than
each Amortizing Payment. Distributions, if any, in respect of this Series 200_-_
Trust Certificate will be made pursuant to Section 5.02 of the Trust Agreement.
It is the intent of the Depositor, the Company, the Servicer and the
Certificateholder that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Series 200_-_
Subdivision will be treated as a security arrangement for the issuance of debt
by the sole Certificateholder. The Company, by acceptance of the Series 200_-_
Trust Certificates, agrees to treat, and to take no action inconsistent with the
above treatment for so long as the Company is the sole Owner.
Solely in the event the Series 200_-_ Trust Certificates are held by
more than a single Owner, it is the intent of the Depositor, the Company, the
Servicer and the Certificateholders that, for purposes of federal income, state
and local income and single business tax and any other income taxes, the Series
200_-_ Subdivision will be treated as a partnership and the Certificateholders
(including the Company) will be treated as partners in the partnership. The
A-3
Company and the other Certificateholders, by acceptance of a Series _-_ Trust
Certificate, agree to treat, and to take no action inconsistent with the
Treatment of, the Series _-_ Trust Certificates for such tax purposes as
partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Company, or join in any institution against the Company of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Series _-_ Trust
Certificates, the Series _-_ Notes, the Trust Agreement or any of the Basic
Documents.
The holders of the Series 200_ Trust Certificates shall not have legal
title to any part of the Series Owner Trust Estate of any other Series of Trust
Certificates.
Distributions on this Series 200_-_ Trust Certificate will be made as
provided in the Trust Agreement and the Series 200_-_ Supplement by the Owner
Trustee by wire transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this Series
200_-_ Trust Certificate or the making of any notation hereon. Except as
otherwise provided in the Trust Agreement and the Series 200_-_ Supplement and
notwithstanding the above, the final distribution on this Series 200_-_ Trust
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this Series
200_-_ Trust Certificate at the office or agency maintained for that purpose by
the Owner Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Series 200_-_
Trust Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this Series
200_-_ Trust Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement, the Series 200_-_ Supplement or the Sale and
Servicing Agreement or be valid for any purpose.
THIS SERIES 200_-_ TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Series 200_-_ Trust Certificate to be
duly executed.
DAIMLERCHRYSLER AUTO TRUST ____-_
By:
-------------------------------
Not in its individual capacity
but solely as Owner Trustee
Dated: By:
-------------------------------
Authorized Signatory
A-5
[REVERSE OF SERIES 200_-_ TRUST CERTIFICATE]
The Series 200_-_ Trust Certificates do not represent an obligation of,
or an interest in, the Depositor, the Servicer, the Company, the Owner Trustee
or any affiliates of any of them and no recourse may be had against such parties
or their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement, the Series 200_-_ Supplement or the Basic Documents. In
addition, this Series 200_-_ Trust Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement. A copy of each of the Sale and Servicing Agreement, the
Trust Agreement and the Series 200_-_ Supplement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and of the Series 200_-_ Supplement and the modification
of the rights and obligations of the Depositor and the Company and the rights of
the Certificateholders under the Trust Agreement and the Series 200_-_
Supplement at any time by the Depositor, the Company and the Owner Trustee with
the consent of the Holders of the Series 200_-_ Trust Certificates and the
Series 200_-_ Notes, each voting as a class, evidencing not less than a majority
of the Percentage Interests evidenced by the outstanding Series 200_-_ Trust
Certificates or a majority of the outstanding principal balance of the Series
200_-_ Notes of each class. Any such consent by the Holder of this Series 200_-_
Trust Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Series 200_-_ Trust Certificate and of any Series 200_-_
Trust Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent is made upon this Series
200_-_ Trust Certificate. The Trust Agreement also permits the amendment
thereof, and of the Series 200_-_ Supplement, in certain limited circumstances,
without the consent of the Holders of any of the Series 200_-_ Trust
Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Series 200_-_ Trust Certificate is
registerable in the Certificate Register upon surrender of this Series 200_-_
Trust Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Series 200_-_ Trust Certificates of
authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is ________________________, New York, New
York.
Except as provided in the Trust Agreement and the Series 200_-_
Supplement, the Series 200_-_ Trust Certificates are issuable only as registered
Trust Certificates. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Series 200_-_ Trust Certificates are exchangeable
for new Series 200_-_ Trust Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the Holder
A-6
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement as
they related to the Series 200 _-_ Subdivision shall terminate upon the payment
to Series 200_-_ Certificateholders of all amounts required to be paid to them
pursuant to the Trust Agreement, the Series 200_-_ Supplement and the Sale and
Servicing Agreement and the disposition of all property held as part of the
Series Owner Trust Estate. The Servicer of the Receivables may at its option
purchase the Series Owner Trust Estate at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property of
the Trust will effect early retirement of the Trust Certificates; provided,
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Series 200_-_ Pool Balance is less than or
equal to 10% of the Series 200_-_ Original Pool Balance.
The Series 200_-_ Trust Certificates may not be acquired by (a) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (b) a plan described in Section 4975(e)(1)
of the Code or (c) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity or which uses plan assets to acquire
Trust Certificates (each, a "Benefit Plan"). By accepting and holding this
Series 200_-_ Trust Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints_________________________________________________,
attorney, to transfer said Trust Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
___________________________________________ */
Signature Guaranteed:
____________________________ */
-----------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Trust Certificate in every particular, without alteration, enlargement
or any change whatever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as
may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-8
EXHIBIT B
Form of Certificate of Trust of DaimlerChrysler Auto Trust ____-_
THIS Certificate of Trust of DaimlerChrysler Auto Trust ____-_ (the
"Trust"), dated ___________, 200_, is being duly executed and filed by
_____________________________, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code, ss.
3801 et seq.).
1. Name. The name of the business trust formed hereby is DAIMLERCHRYSLER
AUTO TRUST _____-__.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is _____________________________, Attention:
Corporate Trustee Administration Department.
3. Series Trust. The Trust shall be a series trust and the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against the
assets of such series only, and not against the assets of the Trust generally.
4. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
_____________________________________________
not in its individual capacity but solely as
owner trustee under the Trust Agreement
dated as of ____________, 200_-_
By:
-------------------------------------------
Name:
Title:
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: DaimlerChrysler Auto Trust ___-_
Asset Backed Certificates, Series 200_-_
-----------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Asset Backed
Certificates Series 200_-_ (the "Series 200_-_ Certificates") we certify that
(a) we understand that the Series 200_-_ Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
transferred by us in a transaction that is exempt from the registration
requirements of the Act and (b) we have not offered or sold any Series 200_-_
Certificates to, or solicited offers to buy any Series 200_-_Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which would
result in, a violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:
---------------------------
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: DaimlerChrysler Auto Trust ____-_
Asset Backed Certificates Series ___-_
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Asset
Backed Certificates, Series 200_-_ (the "Series 200_-_ Certificates") we
certify that (a) we understand that the Series 200_-_ Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Series 200_-_ Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the seller concerning the purchase of
the Series 200_-_ Certificates and all matters relating thereto or any
additional information deemed necessary to our decision to purchase the Series
200_-_ Certificates, (d) we are acquiring the Series 200_-_ Certificates for
investment for our own account and not with a view to any distribution of such
Series 200_-_ Certificates (but without prejudice to our right at all times to
sell or otherwise dispose of the Series 200_-_ Certificates in accordance with
clause (f) below), (e) we have not offered or sold any Series 200_-_
Certificates to, or solicited offers to buy any Series 200_-_ Certificates
from, any person, or otherwise approached or negotiated with any person with
respect thereto, or taken any other action that would result in a violation of
Section 5 of the Act or any state securities laws and (f) we will not sell,
transfer or otherwise dispose of any Series 200_-_ Certificates unless (1)
such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act and in compliance with any relevant state
securities laws or is exempt from such registration requirements and, if
requested, we will at our expense provide an Opinion of Counsel satisfactory
to the addresses of this certificate that such sale, transfer or other
disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Series 200_-_ Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (3) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Amended and Restated Trust dated
as of _______, 200_, between DaimlerChrysler Services North America LLC, as
Depositor, DaimlerChrysler Retail Receivables LLC and [____________], as Owner
Trustee and the Series 200_-_ Series Supplement thereto dated as of
________________, 200_-_.
Very truly yours,
[NAME OF TRANSFEREE]
By:
-----------------------------------
Authorized Officer
D-1
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: DaimlerChrysler Auto Trust 200_-_
Asset Backed Certificates, Series 200_-_
----------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Asset Backed
Certificates, Series 200_-_ (the "Series 200_-_ Certificates") we certify that
(a) we understand that the Series 200_-_ Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Series 200_-_
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the seller concerning the purchase of the Series 200_-_
Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Series 200_-_ Certificates, (d)
we have not, nor has anyone acting on our behalf, offered, transferred, pledged,
sold or otherwise disposed of the Series 200_-_ Certificates or any interest in
the Series 200_-_ Certificates, or solicited any offer to buy, transfer, pledge
or otherwise dispose of the Series 200_-_ Certificates or any interest in the
Series 200_-_ Certificates from any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action that would constitute a distribution of the Series 200_-_
Certificates under the Act or that would render the disposition of the Series
200_-_ Certificates a violation of Section 5 of the Act or any state securities
laws or require registration pursuant thereto, and we will not act, or authorize
any person to act, in such manner with respect to the Series 200_-_
Certificates, and (e) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Series 200_-_ Certificates
for our own account or for resale pursuant to Rule 144A and understand that such
Series 200_-_ Certificates may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A or (ii) pursuant to another exemption from registration
under the Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------
Authorized Officer
E-1
