1
EXHIBIT 99.6
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
-------------------------
OWNER TRUSTEE
DATED AS OF ____________, 20___
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE..................1
Section 1.1 Definitions........................................................1
ARTICLE II
ORGANIZATION.................................1
Section 2.1 Name..............................................................1
Section 2.2 Office............................................................1
Section 2.3 Purposes and Powers...............................................1
Section 2.4 Appointment of Owner Trustee......................................2
Section 2.5 Initial Capital Contribution of Owner Trust Estate................2
Section 2.6 Declaration of Trust..............................................2
Section 2.7 Liability of the Certificateholders...............................3
Section 2.8 Title to Trust Property...........................................3
Section 2.9 Situs of Trust....................................................3
Section 2.10 Representations and Warranties of the Seller......................3
Section 2.11 Tax Treatment.....................................................4
Section 2.12 Federal Income Tax Allocations....................................4
ARTICLE III
THE CERTIFICATES...............................5
Section 3.1 Initial Certificate Ownership.....................................5
Section 3.2 Form of the Certificates..........................................5
Section 3.3 Execution, Authentication and Delivery............................6
Section 3.4 Registration; Registration of Transfer and Exchange of
Certificates......................................................6
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.................8
Section 3.6 Persons Deemed Certificateholders.................................9
Section 3.7 Access to List of Certificateholders' Names and Addresses.........9
Section 3.8 Maintenance of Corporate Trust Office.............................9
Section 3.9 Appointment of Paying Agent.......................................9
Section 3.10 Book-Entry Certificates..........................................10
Section 3.11 Notices to Clearing Agency.......................................11
Section 3.12 Termination of Book-Entry Registration...........................11
Section 3.13 Seller as Certificateholder......................................12
3
ARTICLE IV
ACTIONS BY OWNER TRUSTEE.........................12
Section 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters..........................................................12
Section 4.2 Action by Certificateholders with Respect to Certain Matters'....13
Section 4.3 Action by Certificateholders with Respect to Bankruptcy..........13
Section 4.4 Restrictions on Certificateholders' Power........................13
Section 4.5 Majority Control.................................................13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................14
Section 5.1 Establishment of Certificate Distribution Account................14
Section 5.2 Application of Trust Funds.......................................14
Section 5.3 Method of Payment................................................15
Section 5.4 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others..............................16
Section 5.5 Signature on Returns; Other Tax Matters..........................16
ARTICLE VI
THE OWNER TRUSTEE.............................16
Section 6.1 Duties of Owner Trustee..........................................16
Section 6.2 Rights of Owner Trustee..........................................17
Section 6.3 Acceptance of Trusts and Duties..................................18
Section 6.4 Action upon Instruction by Certificateholders....................19
Section 6.5 Furnishing of Documents..........................................20
Section 6.6 Representations and Warranties of Owner Trustee..................20
Section 6.7 Reliance; Advice of Counsel......................................21
Section 6.8 Owner Trustee May Own Certificates and Notes.....................22
Section 6.9 Compensation and Indemnity.......................................22
Section 6.10 Replacement of Owner Trustee.....................................22
Section 6.11 Merger or Consolidation of Owner Trustee.........................23
Section 6.12 Appointment of Co-Trustee or Separate Trustee....................24
Section 6.13 Eligibility Requirements for Owner Trustee.......................25
ARTICLE VII
TERMINATION OF TRUST AGREEMENT......................25
Section 7.1 Termination of Trust Agreement...................................25
4
ARTICLE VIII
AMENDMENTS.................................27
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders'.....................................................27
Section 8.2 Amendments With Consent of Certificateholders and
Noteholders'.....................................................27
Section 8.3 Form of Amendments...............................................28
ARTICLE IX
MISCELLANEOUS...............................28
Section 9.1 No Legal Title to Owner Trust Estate.............................28
Section 9.2 Limitations on Rights of Others..................................29
Section 9.3 Derivative Actions...............................................29
Section 9.4 Notices..........................................................29
Section 9.5 Severability.....................................................29
Section 9.6 Counterparts.....................................................29
Section 9.7 Successors and Assigns...........................................29
Section 9.8 No Petition......................................................30
Section 9.9 No Recourse......................................................30
Section 9.10 Headings.........................................................30
Section 9.11 GOVERNING LAW....................................................31
Section 9.12 Indemnification by and Reimbursement of the Servicer.............31
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
5
TRUST AGREEMENT, dated as of ______________, 20___, between CAPITAL
AUTO RECEIVABLES, INC., a Delaware corporation, as Seller, and
__________________, a _______________, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Secured Note Trust Sale and Servicing Agreement, dated as of
_________, 20___, between the Seller, the Servicer and the Trust (the "Trust
Sale and Servicing Agreement"). All references herein to "the Agreement" or
"this Agreement" are to this Trust Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections and subsections of
this Agreement unless otherwise specified. The rules of construction set forth
in Part II of such Appendix shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The Trust created hereby shall be known as "Capital
Auto Receivables Asset Trust 20__-SN[1]," in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued on behalf of the Trust.
The Owner Trustee is hereby authorized to file the Certificate of Trust on
behalf of the Trust pursuant to Section 3810(a) of the Business Trust Statute.
SECTION 2.2 OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Seller.
SECTION 2.3 PURPOSES AND POWERS. The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the following activities:
(a) to acquire, manage and hold the Secured Notes;
(b) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and the Certificates;
(c) to acquire certain property and assets from the Seller
pursuant to the Trust Sale and Servicing Agreement, to make payments to
the Noteholders and the
1
6
Certificateholders, to make deposits into and withdrawals from the
Reserve Account and to pay the organizational, start-up and
transactional expenses of the Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to hold,
manage and distribute to the Certificateholders pursuant to the terms
of this Agreement and the Trust Sale and Servicing Agreement any
portion of the Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
(e) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(f) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders; and
(g) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith;
including entering into interest rate swaps and caps and other
derivative instruments.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Seller 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 Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Seller shall
pay organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificate Owners,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute, that this Agreement constitute the governing
instrument of such business trust and that the Certificates represent the
beneficial interests therein. The rights of the Certificateholders shall
2
7
be determined as set forth herein and in the Business Trust Statute and the
relationship between the parties hereto created by this Agreement shall not
constitute indebtedness for any purpose. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Business Trust Statute with respect to accomplishing the purposes of the
Trust.
SECTION 2.7 LIABILITY OF THE CERTIFICATEHOLDERS. Certificateholders and
holders of beneficial interests therein shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the Delaware General Corporation Law.
SECTION 2.8 TITLE TO TRUST PROPERTY. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9 SITUS OF TRUST. The Trust shall be located and administered
in the States of Delaware or New York. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust shall be the Corporate Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are presently owned and such business
is presently conducted and had at all relevant times, and now has,
power, authority and legal right to acquire and own the Secured Notes.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms, the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with the Issuer as part of the Trust and the
Seller has duly authorized such sale and assignment to the Issuer by
all necessary corporate
3
8
action; and the execution, delivery and performance of this Agreement
have been duly authorized by the Seller by all necessary corporate
action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of the Seller, or
any indenture, agreement or other instrument to which the Seller is a
party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents), or violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
SECTION 2.11 TAX TREATMENT. The Seller and the Owner Trustee, by
entering into this Agreement, and the Certificateholders, by acquiring any
Certificates or interest therein, (i) express their intention that the
Certificates will qualify as equity interests in either (A) a division of the
Seller, or any other single Person, disregarded as a separate entity for federal
income tax purposes if all Certificates are owned solely by the Seller or by
such single Person, or (B) a partnership for federal income tax purposes if the
Certificates are owned by more than one Person and (ii) unless otherwise
required by the appropriate taxing authorities, agree to treat the Certificates
as equity interests in an entity as described in clause (i) of this Section 2.11
for the purposes of federal income taxes, state and local income and franchise
taxes, Michigan single business tax, and any other taxes imposed upon, measured
by, or based upon gross or net income. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
such characterization of the Trust for such tax purposes.
SECTION 2.12 FEDERAL INCOME TAX ALLOCATIONS. If Certificates are held
by more than one Person or the Trust is recharacterized as a separate entity,
interest payments on the Certificates (or other interests in the Trust treated
as equity in the Trust for applicable tax purposes ("Equity Interests"),
including interest on amounts previously due on the Certificates or Equity
Interests but not yet distributed) shall be treated as "guaranteed payments"
under Section 707(c) of the Code. Net income of the Issuer for any month as
determined for Federal income tax purposes (and each item of income, gain, loss
and deduction entering into the computation thereof) shall be allocated:
(a) among the Certificateholders and Equity Interest holders
as of the close of business on the last day of such month, in
proportion to their ownership of principal amount of Certificates and
Equity Interests on such date, an amount of net income up to the sum
of: (i) the portion of the market discount on the Secured Notes accrued
during such month that is allocable to the excess, if any, of the
initial Certificate Balance over their initial aggregate
4
9
issue prices; (ii) Certificateholders' and Equity Interest holders'
prepayment premium, if any, payable for such month; and (iii) any other
amounts of income payable to the Certificateholders or Equity Interest
holders for such month; and such sum of amounts specified in clauses
(i) through (iii) of this sentence shall be reduced by any amortization
by the Trust of premium on Secured Notes that corresponds to any excess
of the issue price of Certificates or Equity Interests over their
principal amount; and
(b) to the Seller [, AND OTHER HOLDERS OF INTERESTS IN THE
RESERVE ACCOUNT,] to the extent of any remaining net income, in
accordance with their respective interests therein.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a), subsequent net income shall first be allocated to make
up such shortfall before being allocated as provided in the preceding sentence.
Net losses of the Trust, if any, for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated to the Seller [(OR OTHER HOLDERS OF
INTERESTS IN THE RESERVE ACCOUNT)] to the extent the Seller [(OR SUCH HOLDERS)]
are reasonably expected to bear the economic burden of such net losses, and any
remaining net losses shall be allocated among the remaining Certificateholders
and Equity Interest holders as of the close of business on the last day of such
month in proportion to their ownership of principal amount of Certificates and
Equity Interests on such day. The Seller is authorized to modify the allocations
in this paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Seller
[(OR OTHER HOLDERS OF INTERESTS IN THE RESERVE ACCOUNT)] or to the
Certificateholders or Equity Interest holders, or as otherwise required by the
Code. Notwithstanding anything provided in this Section 2.12, if the
Certificates are held solely by one Person or the Trust has not been
recharacterized as a separate entity, the application of this Section 2.12 shall
be disregarded.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP. Upon the formation of the
Trust by the contribution by the Seller pursuant to Section 2.5 and until the
issuance of the Certificates, the Seller shall be the sole Certificateholder.
SECTION 3.2 FORM OF THE CERTIFICATES.
(a) The Certificates shall be substantially in the form set
forth in Exhibit A and shall be issued in minimum denominations of
[$20,000] and integral multiples of $1,000 in excess thereof; provided,
however, that one Certificate may be issued in a denomination that
includes any residual amount. The Certificates shall represent the
entire beneficial interest in the Trust. The Certificates shall be
executed on behalf of the Trust by manual or facsimile
5
10
signature of a Responsible Officer of the Owner Trustee. Certificates
bearing the manual or facsimile signatures of individuals who were, at
the time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust, shall be duly issued, fully paid and
non-assessable beneficial interests in the Trust, notwithstanding that
such individuals or any of them shall have ceased to be so authorized
prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of
such Certificates.
(b) The Definitive Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these
methods (with or without steel engraved borders) all as determined by
the officers executing such Certificates, as evidenced by their
execution of such Certificates.
(c) The terms of the Certificates set forth in Exhibit A shall
form part of this Agreement.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. Concurrently with
the sale of the Secured Notes to the Trust pursuant to the Trust Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller, in
authorized denominations. No Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the Owner Trustee or
_______________________, as the Owner Trustee's authenticating agent, by manual
signature. Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.8, a
Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Owner Trustee shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as provided herein; provided, however, that no Certificate
may be subdivided upon transfer or exchange such that the denomination
of any resulting Certificate is less than [$20,000]. _______________
shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the
duties of Certificate Registrar.
6
11
(b) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner whatsoever
their rights to and interests in the Certificates, provided that the
following conditions are satisfied: (i) the transferee provides written
verification from the applicable Rating Agencies that such sale,
transfer, conveyance or assignment will not result in a reduction or
withdrawal of the rating of any class of Notes then outstanding; (ii)
the transferee provides to the Owner Trustee and the Indenture Trustee
an opinion of counsel experienced in such matters that such action will
not cause the Trust to be treated as an association (or publicly traded
partnership) taxable as a corporation for Federal income tax purposes;
(iii) such transferee or assignee agrees in writing to take positions
for tax purposes consistent with the tax positions agreed to be taken
by the initial Certificateholders herein; (iv) the transferee provides
the Owner Trustee (and the Certificate Registrar if not the Owner
Trustee) with an opinion of counsel reasonably satisfactory to the
Owner Trustee stating that such transfer (x) is exempt from
registration under applicable state and federal securities laws, (y)
will not cause the Trust to be an "investment company" or under the
"control" of an "investment company" within the meaning of the
Investment Company Act and (z) otherwise complies with the restrictions
on Transfer contained in this Agreement; and (v) the transferee
certifies to the Owner Trustee that it is not a Benefit Plan. The Owner
Trustee shall have no obligation to determine whether or not a
transferee of a Trust Certificate is or is not a Benefit Plan.
(c) Subject to Section 3.4(b), upon surrender for registration
of transfer of any Certificate at the office or agency maintained
pursuant to Section 3.8, the Owner Trustee shall execute on behalf of
the Trust, authenticate and deliver (or shall cause _______________ as
its authenticating agent to authenticate and deliver), in the name of
the designated transferee or transferees, one or more new Certificates
in authorized denominations of a like aggregate amount dated the date
of authentication by the Owner Trustee or any authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate
principal amount upon surrender of the Certificates to be exchanged at
the Corporate Trust Office maintained pursuant to Section 3.8. Whenever
any Certificates are so surrendered for exchange, the Owner Trustee
shall execute on behalf of the Trust, authenticate and deliver (or
shall cause _______________ as its authenticating agent to authenticate
and deliver) one or more Certificates dated the date of authentication
by the Owner Trustee or any authenticating agent. Such Certificates
shall be delivered to the Holder making the exchange.
(e) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Holder or his attorney
duly authorized in writing and such other documents and instruments as
may be required by Section 3.4(b). Each Certificate surrendered for
registration of transfer or exchange shall be
7
12
canceled and subsequently destroyed or otherwise disposed of by the
Owner Trustee or Certificate Registrar in accordance with its customary
practice.
(f) The Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge
that may be imposed and any other expenses of the Owner Trustee in
connection with any transfer or exchange of Certificates.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence
to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Certificate Registrar,
the Owner Trustee and the Trust such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a protected purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee
shall authenticate and deliver (or shall cause _______________ as its
authenticating agent to authenticate and deliver), in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate in authorized denominations of a like aggregate
principal amount; provided, however, that if any such destroyed, lost
or stolen Certificate, but not a mutilated Certificate, shall have
become or within seven days shall be due and payable, then instead of
issuing a replacement Certificate the Owner Trustee may pay such
destroyed, lost or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate in
respect of a destroyed, lost or stolen Certificate pursuant to Section
3.5(a), a protected purchaser of the original Certificate in lieu of
which such replacement Certificate was issued presents for payment such
original Certificate, the Owner Trustee shall be entitled to recover
such replacement Certificate (and any distributions or payments made
with respect thereto) from the Person to whom it was delivered or any
Person taking such replacement Certificate from such Person to whom
such replacement Certificate was delivered or any assignee of such
Person, except a protected purchaser, and shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require the
payment by the Holder of such Certificate of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith.
8
13
(d) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen
Certificate shall constitute an original additional beneficial interest
in the Trust, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time or be enforced by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Certificates duly issued
hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Certificates.
SECTION 3.6 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
SECTION 3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list of the names and addresses of
the Certificateholders as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Servicer, the Seller or the Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 MAINTENANCE OF CORPORATE TRUST OFFICE. The Owner Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates the offices of [OWNER TRUSTEE
NAME][FULL ADDRESS] as its principal office for such purposes. The Owner Trustee
shall give prompt written notice to the Seller and to the Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
SECTION 3.9 APPOINTMENT OF PAYING AGENT. Except as otherwise provided
in Section 5.2, the Paying Agent shall make distributions to Certificateholders
from the Certificate Distribution Account pursuant to Section 5.2 and shall
report the amounts of such distributions to the Owner Trustee and the Servicer;
provided, however, that no such reports shall be required so long as the Seller
is the sole Certificateholder. Any Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner
9
14
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Paying Agent shall initially be ______________, 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. If _______________ shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the Owner Trustee also in its role
as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent, certificate registrar or
authenticating agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10 BOOK-ENTRY CERTIFICATES. [THE CERTIFICATES TO BE ISSUED ON
THE CLOSING DATE SHALL BE ISSUED IN DEFINITIVE FORM. CERTIFICATES TO BE ISSUED
AFTER THE CLOSING DATE (OTHER THAN THOSE DESCRIBED IN SECTION 3.9 MAY BE ISSUED
IN THE FORM OF A TYPEWRITTEN CERTIFICATE OR CERTIFICATES REPRESENTING BOOK-ENTRY
CERTIFICATES. ANY SUCH BOOK-ENTRY CERTIFICATE SHALL BE] [EXCEPT FOR THE
CERTIFICATES ISSUED TO THE SELLER, THE CERTIFICATES, UPON ORIGINAL ISSUANCE,
SHALL BE ISSUED IN THE FORM OF A PRINTED CERTIFICATE OR CERTIFICATES
REPRESENTING BOOK-ENTRY CERTIFICATES, TO BE] delivered to the Clearing Agency by
or on behalf of the Trust and shall be registered on the Certificate Register in
the name of the Clearing Agency (or its nominee) and no Certificate Owner shall
receive a Definitive Certificate, except as provided in Section 3.12. If and to
the extent Book-Entry Certificates have been issued pursuant to this Section
3.10 with respect to any Certificates:
(a) the provisions of this Section 3.10 shall be in full force
and effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the distribution of Certificate Balance and
interest on such Certificates and the giving of instructions or
directions hereunder) as the sole Holder of such Certificates, and
shall have no obligation to the Certificate Owners;
(c) to the extent that the provisions of this Section 3.10
conflict with any other provisions of this Agreement, the provisions of
this Section 3.10 shall control;
10
15
(d) the rights of the Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants and, unless
and until Definitive Certificates are issued pursuant to Section 3.12,
the initial Clearing Agency shall make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
Certificate Balance and interest on such Certificates to such Clearing
Agency Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Voting Interests, the Clearing
Agency shall be deemed to represent such percentage only to the extent
that it has received written instructions to such effect from
Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of Voting
Interests and has delivered such instructions to the Owner Trustee.
provided, however, that the provisions of this Section 3.10 shall not be
applicable in respect of Certificates issued to the Seller. The Seller or the
Owner Trustee may set a record date for the purpose of determining the identity
of Holders of Certificates entitled to vote or to consent to any action by vote
as provided in this Agreement.
SECTION 3.11 NOTICES TO CLEARING AGENCY. With respect to any
Certificates issued as Book-Entry Certificates, whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates representing such Certificates shall have been
issued to the related Certificate Owners pursuant to Section 3.12, the Owner
Trustee shall give all such notices and communications specified herein to be
given to the related Certificateholders to the Clearing Agency and shall have no
further obligation to such Certificate Owners.
SECTION 3.12 TERMINATION OF BOOK-ENTRY REGISTRATION. With respect to
any Certificates issued as Book-Entry Certificates, if (i) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates, and the Administrator is unable to locate a qualified successor,
(ii) the Administrator at its option advises the Owner Trustee in writing that
it elects to terminate the book-entry system through the Clearing Agency or
(iii) after the occurrence of an Event of Default or a Servicer Default,
Certificate Owners representing beneficial interests aggregating at least a
majority of the Voting Interests advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Certificate Owners, then the Clearing Agency shall
notify all Certificate Owners and the Owner Trustee of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Owner Trustee of the
typewritten Certificate or Certificates representing Book-Entry Certificates by
the Clearing Agency, accompanied by registration instructions, the Owner Trustee
shall execute and authenticate the related Definitive Certificates in accordance
with the instructions of the Clearing Agency. Neither the Certificate Registrar
nor the
11
16
Owner Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Additionally, Definitive Certificates shall be issued to a
Certificate Owner (or its nominee) at any time (subject to the rules and
procedures of the Clearing Agency) upon the request of such Certificate Owner
that its interest be exchanged for a Definitive Certificate or Certificates.
Upon the issuance of such Definitive Certificates, the Owner Trustee shall
recognize the Holders of such Definitive Certificates as Certificateholders.
SECTION 3.13 SELLER AS CERTIFICATEHOLDER. The Seller in its individual
or any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on a Secured Note, a Program Lease securing a
Secured Note or a related Vehicle or an action by the Indenture Trustee
pursuant to the Indenture) and the compromise of any action, claim or
lawsuit brought by or against the Trust (other than an action to
collect on a Secured Note, a Program Lease securing a Secured Note or a
related Vehicle or an action by the Indenture Trustee pursuant to the
Indenture);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, a conformed copy of which is attached hereto as
Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner that would not materially
adversely affect the interests of the Certificateholders; or
12
17
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, appoint a successor
Administrator pursuant to Section 10 of the Administration Agreement, remove the
Servicer under the Trust Sale and Servicing Agreement pursuant to Section 7.02
thereof or except as expressly provided in the Basic Documents, sell the Secured
Notes or any interest therein after the termination of the Indenture. The Owner
Trustee shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders.
SECTION 4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
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
Holders of Certificates; provided, however, that under no circumstances shall
the Owner Trustee commence or join in commencing any such proceeding prior to
the date that is one year and one day after the termination of the Trust.
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given. The Certificateholders shall
not and shall not direct the Owner Trustee to take action that would violate the
provisions of Section 6.1 and, if given, the Owner Trustee shall not be
obligated to follow any such direction.
SECTION 4.5 MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of Certificates
evidencing not less than a majority of the Voting Interests as of the close of
the preceding Distribution Date. Except as expressly provided herein, any
written notice, instruction, direction or other document of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Voting Interests at the time of the delivery of such notice.
13
18
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT.
(a) Except as otherwise provided in Section 5.2, the Servicer,
for the benefit of the Certificateholders, shall establish and maintain
in the name of the Trust an Eligible Deposit Account known as the
Capital Auto Receivables Asset Trust 20__-SN[1] Certificate
Distribution Account (the "Certificate Distribution Account"), bearing
an additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(b) The Trust shall possess all right, title and interest in
and to all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. Except as otherwise
provided herein or in the Trust Sale and Servicing Agreement, the
Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the Certificateholders.
If, at any time, the Certificate Distribution Account ceases to be an
Eligible Deposit Account, the Owner Trustee (or the Servicer on behalf
of the Owner Trustee, if the Certificate Distribution Account is not
then held by the Owner Trustee or an Affiliate thereof) shall within 10
Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Certificate
Distribution Account as an Eligible Deposit Account and shall transfer
any cash and/or any investments to such new Certificate Distribution
Account.
SECTION 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee shall
distribute to the Certificateholders, on a pro rata basis, amounts
equal to the amounts deposited in the Certificate Distribution Account
pursuant to Sections 4.06 and 4.07 of the Trust Sale and Servicing
Agreement on or prior to such Distribution Date. Notwithstanding the
foregoing or anything else to the contrary in this Agreement or the
other Basic Documents, so long as Certificates representing in the
aggregate a 100% beneficial interest in the Trust are held by the
Seller, (i) no Certificate Distribution Account shall be required to be
established or maintained and (ii) all distributions and payments on
the Certificates (including the final distribution as contemplated by
Section 7.1(c)) required hereunder or under the Trust Sale and
Servicing Agreement shall be made directly to the Seller by the
Indenture Trustee (whether or not the Trust Sale and Servicing
Agreement otherwise contemplates deposit into the Certificate
Distribution Account) and the Owner Trustee shall have no duty or
liability to see to such distribution.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement provided to the Owner Trustee by
the Servicer pursuant to
14
19
Section 4.09(a) of the Trust Sale and Servicing Agreement on such
Distribution Date setting forth, among other things, the amount of the
distribution allocable to Certificate Balance and to interest, the
Certificate Balance after giving effect to such distribution, the
balance of the Reserve Account (and amounts, if any, distributed from
the Reserve Account) and the Total Servicing Fee with respect to such
Distribution Date or Monthly Period, as applicable; provided, however,
that no such statement shall be required to be sent by the Owner
Trustee so long as the Seller is the sole Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.2; provided, however, that the Owner
Trustee shall not have an obligation to withhold any such amount so
long as the Seller is the sole Certificateholder. The Owner Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any
such tax in appropriate proceedings and withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted
to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Owner Trustee may in
its sole discretion withhold such amounts in accordance with this
Section 5.2(c). If a Certificateholder wishes to apply for a refund of
any such withholding tax, the Owner Trustee shall reasonably cooperate
with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the Indenture, the Owner
Trustee shall, upon notice from the Indenture Trustee that such funds
exist, submit on behalf of the Trust an Issuer Order to the Indenture
Trustee pursuant to Section 3.3(e) of the Indenture instructing the
Indenture Trustee to pay such funds to or at the order of the Seller.
SECTION 5.3 METHOD OF PAYMENT. Subject to Section 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the immediately preceding Record Date (i)
by wire transfer, in immediately available funds, to the account of such Holder
at a bank or other entity having appropriate facilities therefor, if (x) the
Certificates are Definitive Certificates, and such Certificateholder shall have
provide to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Record Date and the distribution required to be
made to such Holder on such Distribution Date exceeds $100,000 or (y) the
Certificates are Book-Entry Certificates, or, (ii) if neither clause (i)(x) nor
clause
15
20
(i)(y) is applicable, by check mailed to such Certificateholder at the address
of such holder appearing in the Certificate Register.
SECTION 5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall maintain (or cause
to be maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, deliver to each Certificateholder, as may be required by
the Code and applicable Treasury Regulations or otherwise, such information as
may be required to enable each Certificateholder to prepare its federal income
tax return, file such tax returns relating to the Trust and make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as an entity described in clause (i) of Section 2.11
for federal income tax purposes, cause such tax returns to be signed in the
manner required by law and collect or cause to be collected any withholding tax
as described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. The Owner Trustee shall elect under Section
1278 of the Code to include in income currently any market discount that accrues
with respect to the Secured Notes. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
SECTION 5.5 SIGNATURE ON RETURNS; OTHER TAX MATTERS. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the Seller. To the extent one may be
required, the Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 DUTIES OF OWNER TRUSTEE.
(a) The Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and
the other Basic Documents, including the administration of the Trust in
the interest of the Certificateholders, subject to the Basic Documents
and in accordance with the provisions of this Agreement. No implied
covenants or obligations shall be read into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Administrator has agreed in
the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any Basic Document, and
the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration
Agreement.
16
21
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions furnished to the
Owner Trustee and conforming to the requirements of this Agreement in
determining the truth of the statements and the correctness of the
opinions contained therein; provided, however, that the Owner Trustee
shall have examined such certificates or opinions so as to determine
compliance of the same with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this Section 6.1(d) shall not limit the
effect of Section 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for
any error of judgment made in good faith by
a Responsible Officer unless it is proved
that the Owner Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with
respect to any action it takes or omits to
take in good faith in accordance with a
direction received by it pursuant to Section
4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the
Owner Trustee hereunder need not be segregated in any manner except to
the extent required by law or the Trust Sale and Servicing Agreement
and may be deposited under such general conditions as may be prescribed
by law, and the Owner Trustee shall not be liable for any interest
thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or
(ii) would, to the actual knowledge of a Responsible Officer of the
Owner Trustee, result in the Trust's becoming taxable as a corporation
for federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the
provisions of this Section 6.1.
SECTION 6.2 RIGHTS OF OWNER TRUSTEE. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Administrator recommends and directs in writing with respect to the Basic
Documents.
17
22
SECTION 6.3 ACCEPTANCE OF TRUSTS AND DUTIES. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created,
_______________acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except for its own negligent action, its own negligent failure to act or its own
willful misconduct or in the case of the inaccuracy of any representation or
warranty contained in Section 6.6 and expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and
enforceability of any Secured Note, Program Lease securing a Secured
Note or related Vehicle, or the perfection and priority of any security
interest created by any Secured Note in any Lease Asset or the
maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this
Agreement or to Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Lease Asset
securing a Secured Note; the existence and enforceability of any
insurance thereon; the existence and contents of any Secured Note on
any computer or other record thereof; the validity of the assignment of
any Secured Note to the Trust or of any intervening assignment; the
completeness of any Secured Note; the performance or enforcement of any
Secured Note; the compliance by the Seller or the Servicer with any
warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation
or any action of the Administrator, the Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Basic Document, if the Owner Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
18
23
(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 or the
Certificate Balance of and interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or
sufficiency of any provision of this Agreement or for the due execution
hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Secured Notes or any
related documents, and the Owner Trustee shall in no event assume or
incur any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller or
the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or
the Servicer under the Pooling and Servicing Agreement or the Trust
Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
SECTION 6.4 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS.
(a) Subject to Section 4.4, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if
the Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to
19
24
result in liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise contrary to
law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or any Basic Document, or is unsure as to the
application, intent, interpretation or meaning of any provision of this
Agreement or the Basic Documents, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances)
to the Certificateholders requesting instruction as to the course of
action to be adopted, and, to the extent the Owner Trustee acts in good
faith in accordance with any such instruction received, the Owner
Trustee shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate instructions
within ten days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action which is consistent, in its view, with
this Agreement or the Basic Documents, and as it shall deem to be in
the best interests of the Certificateholders, and the Owner Trustee
shall have no liability to any Person for any such action or inaction.
SECTION 6.5 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of __________________. It
has satisfied the eligibility requirements set forth in Section 6.13.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Owner Trustee or any
order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Owner Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter
or by-laws of the Owner Trustee or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other
20
25
undertaking to which it is a party, which violation, default or lien
could reasonably be expected to have a materially adverse effect on the
Owner Trustee's performance or ability to perform its duties as Owner
Trustee under this Agreement or on the transactions contemplated in
this Agreement.
(d) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of
the Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
SECTION 6.7 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be signed by
the proper party or parties and need not investigate any fact or matter
in any such document. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been
duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Owner Trustee may for
all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of
the relevant party, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this
Agreement or the Basic Documents, the Owner Trustee: may act directly
or through its agents, attorneys, custodians or nominees (including the
granting of a power of attorney to officers of __________________ to
execute and deliver any Basic Documents, Certificate, Note or other
documents related thereto on behalf of the Owner Trustee) pursuant to
agreements entered into with any of them, and the Owner Trustee shall
not be liable for the conduct or misconduct of such agents, attorneys,
custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the Owner Trustee with reasonable
care; and may consult with counsel, accountants and other skilled
professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the opinion or advice of
any such counsel, accountants or other such Persons and not contrary to
this Agreement or any Basic Document.
21
26
SECTION 6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Seller, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Owner Trustee.
SECTION 6.9 COMPENSATION AND INDEMNITY. The Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Servicer and the Owner Trustee,
and the Owner Trustee, any paying agent, registrar, authenticating agent or
co-trustee shall be entitled to be reimbursed by the Servicer for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee, any paying agent, registrar, authenticating agent or
co-trustee and its successors, assigns, agents and servants in accordance with
the provisions of Section 6.01 of the Trust Sale and Servicing Agreement. The
indemnities contained in this Section 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. Any
amounts paid to the Owner Trustee pursuant to this Article VI shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment.
SECTION 6.10 REPLACEMENT OF OWNER TRUSTEE.
(a) The Owner Trustee may give notice of its intent to resign
and be discharged from the trusts hereby created by giving notice
thereof to the Administrator provided that no such resignation shall
become effective, and the Owner Trustee shall not resign, prior to the
time set forth in Section 6.10(c). If no successor Owner Trustee shall
have been appointed pursuant to Section 6.10(b) and have accepted such
appointment within 30 days after the giving of such notice, the Owner
Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible
in accordance with the provisions of Section
6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt
or insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the
Owner Trustee or of its property or affairs
for the purpose of rehabilitation,
conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be
incapable of acting.
22
27
(b) If the Owner Trustee gives notice of its intent to resign
or is removed or if a vacancy exists in the office of Owner Trustee for
any reason the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee) and shall pay all fees
owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the
provisions of this Section 6.10 shall not become effective and no such
resignation shall be deemed to have occurred until a written acceptance
of appointment is delivered by the successor Owner Trustee to the
outgoing Owner Trustee and the Administrator and all fees and expenses
due to the outgoing Owner Trustee are paid. Any successor Owner Trustee
appointed pursuant to this Section 6.10 shall be eligible to act in
such capacity in accordance with Section 6.13 and, following compliance
with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee.
The Administrator shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents
and statements and monies held by it under this Agreement. The
Administrator and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and
obligations.
(e) Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section 6.10, the Administrator shall mail
notice of the successor of such Owner Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders and the
Rating Agencies.
SECTION 6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
23
28
SECTION 6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any Secured
Note or Lease Asset securing a Secured Note may at the time be located,
the Administrator and the Owner Trustee acting jointly shall, at the
expense of the Servicer, have the power and shall, at the expense of
the Servicer, execute and deliver all instruments to appoint one or
more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or trustees, of
all or any part of the Owner Trust Estate, and to vest in such Person,
in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 6.12, such powers,
duties, obligations, rights and trusts as the Administrator and the
Owner Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 6.13 and no notice of the
appointment of any co-trustee or separate trustee shall be required
pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee
shall be conferred upon and exercised or
performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it
being understood that such separate trustee
or co-trustee is not authorized to act
separately without the Owner Trustee joining
in such act), except to the extent that
under any law of any jurisdiction in which
any particular act or acts are to be
performed, the Owner Trustee shall be
incompetent or unqualified to perform such
act or acts, in which event such rights,
powers, duties and obligations (including
the holding of title to the Trust or any
portion thereof in any such jurisdiction)
shall be exercised and performed singly by
such separate trustee or co-trustee, but
solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or
omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the
resignation of or remove any separate
trustee or co-trustee.
24
29
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall
be filed with the Owner Trustee and a copy thereof given to the
Administrator.
(d) Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Owner
Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
SECTION 6.13 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times satisfy the requirement of Section 26(a)(1) of the
Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Business Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have a
combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or state authorities; and (d) have (or
have a parent which has) a long-term unsecured debt rating of at least BBB- by
Standard Poor's Rating Services and at least Baa3 by ▇▇▇▇▇'▇ Investors Service,
Inc. If such corporation shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 6.13, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.13, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Section 6.9) and the Trust
shall terminate in accordance with Section 3808 of the Business Trust
Statute and be of no further force or
25
30
effect on the final distribution by the Owner Trustee of all monies or
other property or proceeds of the Owner Trust Estate in accordance with
the terms of the Indenture, the Trust Sale and Servicing Agreement
(including the exercise by the Servicer of its option to purchase the
Secured Notes pursuant to Section 8.01(a) of the Trust Sale and
Servicing Agreement) and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x)
operate to terminate this Agreement or the Trust, (y) entitle such
Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or the Owner
Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Neither the Seller nor any Certificateholder shall be
entitled to revoke or terminate the Trust or this Agreement.
(c) Subject to Section 5.2(a), notice of any termination of
the Trust, specifying the Distribution Date upon which the
Certificateholders shall surrender their Certificates to the Paying
Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from
the Servicer given pursuant to Section 8.01(c) of the Trust Sale and
Servicing Agreement, stating: (i) the Distribution Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the
Paying Agent therein designated; (ii) the amount of any such final
payment; and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee)
and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date
pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date
specified in the written notice referred to in Section 7.1(c), the
Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive the final distribution with respect thereto. If within one year
after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and
other assets that shall remain subject to this Agreement. Subject to
applicable laws with respect to escheat of funds, any funds remaining
in the Trust after exhaustion of such remedies in the preceding
sentence shall be deemed property of the Seller
26
31
and distributed by the Owner Trustee to the Seller, and the Owner
Trustee shall have no further liability to the Certificateholders with
respect thereto.
(e) Upon the winding up and termination of the Trust in
accordance with Section 3808 of the Business Trust Statute and this
Section 7.1, the Owner Trustee shall cause the Certificate of Trust to
be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 of the
Business Trust Statute.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR
NOTEHOLDERS. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or the Certificateholders (but
with prior notice to each of the Rating Agencies), to (i) cure any ambiguity,
(ii) correct or supplement any provision in this Agreement that may be defective
or inconsistent with any other provision in this Agreement or any other Basic
Document, (iii) add or supplement any credit enhancement for the benefit of the
Noteholders or the Certificateholders (provided that if any such addition shall
affect any class of Noteholders or Certificateholders differently than any other
class of Noteholders or Certificateholders, then such addition shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any class of the Noteholders or the Certificateholders), (iv) add
to the covenants, restrictions or obligations of the Seller or the Owner
Trustee, (v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the Owner Trust Estate and add to or change
any provisions as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee pursuant to Article VI, and (vi) add,
change or eliminate any other provision of this Agreement in any manner that
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Noteholders or the Certificateholders.
SECTION 8.2 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND
NOTEHOLDERS. This Agreement may be amended from time to time by the Seller and
the Owner Trustee with the consent of Noteholders whose Notes evidence not less
than a majority of the Outstanding Amount of the Notes as of the close of the
preceding Distribution Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the Voting Interests as of the
close of the preceding Distribution Date (which consent, whether given pursuant
to this Section 8.2 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such Notes
or Certificates and of any Notes or Certificates issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Notes or Certificates) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement, or of modifying in any manner the rights of the Noteholders
or the 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
27
32
on Secured Notes or distributions that shall be required to be made on any Note
or Certificate, the Pass Through Rate or the Specified Reserve Account Balance
or (b) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the holders of all Notes and all of the Voting
Interests with respect to Certificates then outstanding. The Owner Trustee shall
furnish notice to each of the Rating Agencies prior to obtaining consent to any
proposed amendment under this Section 8.2.
SECTION 8.3 FORM OF AMENDMENTS.
(a) Promptly after the execution of any amendment, supplement
or consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall
furnish written notification of the substance of such amendment or
consent to each Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee pursuant
to Section 8.2 to approve the particular form of any proposed amendment
or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
28
33
SECTION 9.2 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 9.13,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Certificateholders, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 9.3 DERIVATIVE ACTIONS. Any provision contained herein to the
contrary notwithstanding, the right of any Certificate Owner to bring a
derivative action in the right of the Trust is hereby made expressly subject to
the following limitations and requirements:
(a) such Certificate Owner must meet all requirements set
forth in the Business Trust Statute; and
(b) no Certificate Owner may bring a derivative action in the
right of the Trust without the prior written consent of Certificate
Owners owning, in the aggregate, a beneficial interest in Certificates
representing 50% of the then outstanding Certificate Balance.
SECTION 9.4 NOTICES. All demands, notices and communications upon or to
the Seller, the Servicer, the Administrator, the Indenture Trustee, the Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in Appendix B to the Trust Sale and Servicing Agreement.
SECTION 9.5 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.6 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
SECTION 9.7 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and each Certificateholder and their respective successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
29
34
SECTION 9.8 NO PETITION. The Owner Trustee by entering this Trust
Agreement and each Certificateholder or Certificate Owner, by accepting a
Certificate (or interest therein) issued hereunder, hereby covenant and agree
that they shall not (nor shall they join with or solicit another Person to),
prior to the day that is one year and one day after the termination of the Trust
and of each other Trust heretofore formed by the Seller, acquiesce, petition or
otherwise invoke or cause the Seller or the Trust to invoke in any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller or the Trust.
SECTION 9.9 NO RECOURSE. Each Certificateholder by accepting a
Certificate (or any interest therein) acknowledges that such Person's
Certificate (or interest therein) represents beneficial interests in the Trust
only and does not represent interests in or obligations of the Seller, the
Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof and no recourse, either directly or indirectly, may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic Documents. Except
as expressly provided in the Basic Documents, none of the Seller, the Servicer
or the Owner Trustee in their respective individual capacities, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, or shall recourse be had
to any of them for the distribution of any amount with respect to the
Certificates or the Trust's performance of, or omission to perform, any
obligations or indemnifications contained in the Certificates, this Agreement or
the Basic Documents, it being expressly understood that such Certificateholder
obligations have been made solely by the Trust. Each Certificateholder by the
acceptance of a Certificate (or beneficial interest therein) agrees except as
expressly provided in the Basic Documents, in the event of nonpayment of any
amounts with respect to the Certificates, it shall have no claim against any of
the foregoing Persons for any deficiency, loss or claim therefrom. If any of the
foregoing covenants of each Certificateholder and Certificate Owner is
prohibited by, or declared illegal or otherwise unenforceable against any such
Certificateholder or Certificate Owner under applicable law by any court or
other authority of competent jurisdiction, and, as a result, a Certificateholder
or Certificate Owner is deemed to have an interest in any assets of the Seller
or any Affiliate of the Seller other than the Trust ("other assets"), each
Certificateholder and Certificate Owner agrees that (i) its claim against any
such other assets shall be, and hereby is, subject and subordinate in all
respects to the rights of other Persons to whom rights in the other assets have
been expressly granted ("entitled Persons"), including to the payment in full of
all amounts owing to such entitled Persons, and (ii) the covenant set forth in
the preceding clause (i) constitutes a "subordination agreement" within the
meaning of, and subject to, Section 510(a) of the Bankruptcy Code.
SECTION 9.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
30
35
SECTION 9.11 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 9.12 INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with Section 6.03(b) of
the Trust Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section 3.04 of the Trust Sale
and Servicing Agreement. The Owner Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Owner Trustee harmless as set forth in Section
6.01(a)(iv) of the Trust Sale and Servicing Agreement.
31
36
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
,
-------------------------------------
as Owner Trustee
By:
----------------------------------
Name:
Title:
CAPITAL AUTO RECEIVABLES, INC.
By:
----------------------------------
Name:
Title:
37
EXHIBIT A
NUMBER R- $_____________
CUSIP NO.____
SEE REVERSE FOR CERTAIN DEFINITIONS
[THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (III) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.]
[THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON ____________, 20___, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.
THIS CERTIFICATE IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
TRUST AGREEMENT REFERENCED BELOW.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC); ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
38
CAPITAL AUTO RECEIVABLES ASSET TRUST 20__-SN[1]
_________% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of non-recourse secured notes secured by
automobile and light duty truck leases and the related leased vehicles and all
moneys received with respect to the secured notes after the cutoff date, and
sold to the Trust by Capital Auto Receivables, Inc.
(This Certificate does not represent an interest in or obligation of Capital
Auto Receivables, Inc., General Motors Acceptance Corporation or General Motors
Corporation or any of their respective affiliates, except to the extent
described in the Basic Documents.)
THIS CERTIFIES THAT Capital Auto Receivables, Inc. is the registered
owner of a nonassessable, fully-paid, fractional undivided interest in Capital
Auto Receivables Asset Trust 20__-SN[1] (the "Trust") formed by Capital Auto
Receivables, Inc., a Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of
_________, 20___ (as amended from time to time, the "Trust Agreement"), between
the Seller and __________, as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated
as "_____% Asset Backed Certificates" (the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, the terms of which are incorporated herein by reference and made a
part hereof, to which Trust Agreement the holder of this Certificate by virtue
of the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there shall be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business Day,
commencing on ______ 15, _____ (each, a "Distribution Date"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such Certificateholder's fractional undivided interest in the amount of
interest on and distributions in respect of Certificate Balance to be
distributed to Certificateholders on such Distribution Date; provided, however,
Certificateholders shall not receive payments in respect of the Certificate
Balance until all the Notes have been paid (or provided for) in full. The
"Record Date," with respect to any Distribution Date, means the last day of the
preceding Monthly Period.
A-2
39
The distributions in respect of Certificate Balance and interest on
this Certificate are payable in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Trust with respect to this Certificate
shall be applied first to interest due and payable on this Certificate as
provided above and then to the unpaid distributions in respect of Certificate
Balance of this Certificate.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Secured Note
Trust Sale and Servicing Agreement, dated as of ___________, 20__ (the "Trust
Sale and Servicing Agreement"), between the Seller, the Servicer and the Trust.
It is the intent of the Seller, the Owner Trustee and the
Certificateholders that, for purposes of federal income, state and local income
and franchise taxes, Michigan single business tax and any other taxes imposed
upon, measured by or based upon gross or net income, the Trust shall be treated
as either (A) division of the Seller, or any other single Person, and
disregarded as a separate entity if all Certificates are owned solely by the
Seller or by such single Person, or (B) a partnership if the Certificates are
owned by more than one Person. Except as otherwise required by appropriate
taxing authorities, the Seller and the other Certificateholders by acceptance of
a Certificate agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as interests in such a
disregarded entity or partnership as described in the previous sentence.
Each Certificateholder or Certificate Owner by its acceptance of a
Certificate (or an interest therein) covenants and agrees that such
Certificateholder shall not, prior to the date which is one year and one day
after the termination of the Trust, acquiesce, petition or otherwise invoke or
cause the Seller or the Trustee to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller or the Trustee under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Trustee or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Trustee.
Except as otherwise provided in the Trust Agreement, distributions on
this Certificate shall be made as provided in the Trust Agreement by the Owner
Trustee by wire transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon [EXCEPT THAT WITH RESPECT TO
CERTIFICATES REGISTERED ON THE RECORD DATE IN THE NAME OF THE NOMINEE OF THE
CLEARING AGENCY (INITIALLY, SUCH NOMINEE TO BE CEDE & CO.), PAYMENTS SHALL BE
MADE BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT DESIGNATED
BY SUCH NOMINEE]. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate shall be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office
maintained for such purpose by the Owner Trustee in the Borough of Manhattan,
The City of New York.
A-3
40
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Trust Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE 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
41
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
CAPITAL AUTO RECEIVABLES ASSET
TRUST 20__-SN[1]
,
---------------------------------
not in its individual capacity but
solely as Owner Trustee
Dated: , By:
------------ ---- ------------------------------
Name:
Title:
A-5
42
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
, ,
------------------------------------ -----------------------------------
not in its individual capacity but not in its individual capacity but
solely as Owner Trustee OR solely as Owner Trustee
By: ,
--------------------------------
as Authenticating Agent
By: By:
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
A-6
43
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, General Motors Corporation, the Indenture Trustee, the
Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Secured Notes (and certain other amounts), all as
more specifically set forth herein and in the Trust Agreement and the Trust Sale
and Servicing Agreement. A copy of each of the Trust Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the Holders of the
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
as of the close of the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Voting Interests as of the close of the preceding Distribution Date. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by a written instrument
of transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee. The initial Certificate Registrar appointed under
the Trust Agreement is ___________________.
[THE BOOK-ENTRY CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED
CERTIFICATES WITHOUT COUPONS IN DENOMINATIONS OF $20,000 OR INTEGRAL MULTIPLES
OF $1,000 IN EXCESS THEREOF; PROVIDED, HOWEVER, THAT ONE CERTIFICATE MAY BE
ISSUED IN A DENOMINATION THAT INCLUDES ANY RESIDUAL AMOUNT. AS PROVIDED IN THE
TRUST AGREEMENT AND SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH,
CERTIFICATES ARE EXCHANGEABLE FOR NEW CERTIFICATES OF AUTHORIZED
A-7
44
DENOMINATIONS EVIDENCING THE SAME AGGREGATE DENOMINATION, AS REQUESTED BY THE
HOLDER SURRENDERING THE SAME; PROVIDED, HOWEVER, THAT NO CERTIFICATE MAY BE
SUBDIVIDED SUCH THAT THE DENOMINATION OF ANY RESULTING CERTIFICATE IS LESS THAN
$20,000. NO SERVICE CHARGE SHALL BE MADE FOR ANY SUCH REGISTRATION OF TRANSFER
OR EXCHANGE, BUT THE OWNER TRUSTEE OR THE CERTIFICATE REGISTRAR MAY REQUIRE
PAYMENT OF A SUM SUFFICIENT TO COVER ANY TAX OR GOVERNMENTAL CHARGE PAYABLE IN
CONNECTION THEREWITH.]
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate in accordance with Article VII of
Trust Agreement.
A-8
45
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: *
-----------------------------------------
Signature Guaranteed:
*
-----------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-9
46
EXHIBIT B
CERTIFICATE OF TRUST OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 20___-SN[1]
THIS Certificate of Trust of Capital Auto Receivables Asset Trust
20___-SN[1- (the "Trust") is being duly executed and filed by the undersigned,
as trustee, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is Capital Auto
Receivables Asset Trust 20___-SN[1].
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are [BANK NAME][ADDRESS].
3. This Certificate of Trust shall be effective on ___________, 20____.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
______________________________, not in
its individual capacity but solely as
Owner Trustee under a Trust Agreement
dated as of _________, 20__
By:
------------------------------------
Name:
Title:
B-1
