EXHIBIT 4.1
================================================================================
CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-_
TRUST AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
SELLER
AND
----------
CARAT OWNER TRUSTEE
DATED AS OF _____, 200_
================================================================================
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 CARAT Owner Trustee....................... 2
Section 2.5 Initial Capital Contribution of CARAT Owner Trust
Estate................................................... 2
Section 2.6 Declaration of Trust..................................... 2
Section 2.7 Liability of the CARAT 200_-_ Certificateholders......... 3
Section 2.8 Title to Trust Property.................................. 3
Section 2.9 Situs of Trust........................................... 3
Section 2.10 Representations and Warranties of the Seller............. 3
Section 2.11 Tax Treatment............................................ 4
ARTICLE III THE CARAT 200_-_ CERTIFICATES................................ 5
Section 3.1 Initial Beneficial Ownership............................. 5
Section 3.2 Form of the CARAT 200_-_ Certificates.................... 5
Section 3.3 Execution, Authentication and Delivery................... 5
Section 3.4 Registration; Registration of Transfer and Exchange of
CARAT 200_-_ Certificates................................ 6
Section 3.5 Mutilated, Destroyed, Lost or Stolen CARAT 200_-_
Certificates............................................. 7
Section 3.6 Persons Deemed CARAT 200_-_ Certificateholders........... 8
Section 3.7 Access to List of CARAT 200_-_ 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 Seller as CARAT 200_-_ Certificateholder................. 10
ARTICLE IV ACTIONS BY CARAT OWNER TRUSTEE................................ 10
Section 4.1 Prior Notice to CARAT 200_-_ Certificateholders with
Respect to Certain Matters............................... 10
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 4.2 Action by CARAT 200_-_ Certificateholders with Respect
to Certain Matters....................................... 10
Section 4.3 Action by CARAT 200_-_ Certificateholders with Respect
to Bankruptcy............................................ 11
Section 4.4 Restrictions on CARAT 200_-_ Certificateholders'
Power.................................................... 11
Section 4.5 Majority Control......................................... 11
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................... 11
Section 5.1 Establishment of Certificate Distribution Account........ 11
Section 5.2 Application of Trust Funds............................... 12
Section 5.3 Method of Payment........................................ 13
Section 5.4 Accounting and Reports to the CARAT 200_-_
Certificateholders, the Internal Revenue Service and
Others................................................... 13
Section 5.5 Signature on Returns; Other Tax Matters.................. 14
ARTICLE VI THE CARAT OWNER TRUSTEE....................................... 14
Section 6.1 Duties of CARAT Owner Trustee............................ 14
Section 6.2 Rights of CARAT Owner Trustee............................ 15
Section 6.3 Acceptance of Trusts and Duties.......................... 15
Section 6.4 Action Upon Instruction by CARAT 200_-_
Certificateholders....................................... 17
Section 6.5 Furnishing of Documents.................................. 18
Section 6.6 Representations and Warranties of CARAT Owner Trustee.... 18
Section 6.7 Reliance; Advice of Counsel.............................. 18
Section 6.8 CARAT Owner Trustee May Own CARAT 200_-_ Certificates
and CARAT 200_-_ Notes................................... 19
Section 6.9 Compensation and Indemnity............................... 19
Section 6.10 Replacement of CARAT Owner Trustee....................... 20
Section 6.11 Merger or Consolidation of CARAT Owner Trustee........... 21
Section 6.12 Appointment of Co-Trustee or Separate Trustee............ 21
Section 6.13 Eligibility Requirements for CARAT Owner Trustee......... 22
ARTICLE VII TERMINATION OF TRUST AGREEMENT............................... 23
Section 7.1 Termination of Trust Agreement........................... 23
ARTICLE VIII AMENDMENTS.................................................. 24
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders.............................................. 24
Section 8.2 Amendments With Consent of CARAT 200_-_
Certificateholders and CARAT 200_-_ Noteholders.......... 24
Section 8.3 Form of Amendments....................................... 25
ARTICLE IX MISCELLANEOUS................................................. 26
Section 9.1 No Legal Title to CARAT Owner Trust Estate............... 26
Section 9.2 Limitations on Rights of Others.......................... 26
Section 9.3 Derivative Actions....................................... 26
Section 9.4 Notices.................................................. 26
Section 9.5 Severability............................................. 26
Section 9.6 Counterparts............................................. 26
Section 9.7 Successors and Assigns................................... 27
Section 9.8 No Petition.............................................. 27
Section 9.9 No Recourse.............................................. 27
Section 9.10 Headings................................................. 28
Section 9.11 Governing Law............................................ 28
Section 9.12 Indemnification by and Reimbursement of the Trust
Administrator............................................ 28
Section 9.13 Effect of Amendment and Restatement...................... 28
Section 9.14 Information to be Provided by the Owner Trustee.......... 28
Section 9.15 Transfer Restrictions on CARAT 200_-_ Certificates....... 30
EXHIBITS
EXHIBIT A Form of CARAT 200_-_ Certificate
EXHIBIT B CARAT 200_-_ Certificate of Capital Auto Receivables Asset Trust
200_-_
EXHIBIT C Form of Undertaking Letter
-iii-
TRUST AGREEMENT, dated as of ____, 200_, between CAPITAL AUTO
RECEIVABLES, INC., a Delaware corporation, as Seller, and ______________, a
______________, as trustee and not in its individual capacity (the "CARAT Owner
Trustee").
WHEREAS, the Seller and CARAT Owner Trustee previously entered into a
certain trust agreement dated ____, 200_ (the "Original Trust Agreement"), which
contemplated this Trust Agreement; and
WHEREAS, the Seller and the CARAT Owner Trustee desire hereby to amend
and restate the Original Trust Agreement in its entirety.
NOW, THEREFORE, the Seller and the CARAT Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Administration Agreement, dated as of the date hereof, among
the Seller, the Trust Administrator and the Trust (the "Trust Sale and
Administration 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 A 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 200_-_" in which name the CARAT 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 CARAT Owner Trustee is hereby authorized to file the Certificate of Trust on
behalf of the Trust pursuant to Section 3810(a) of the Statutory Trust Act.
Section 2.2 Office. The office of the Trust shall be in care of the CARAT
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the CARAT Owner Trustee may designate by written notice to the CARAT 200_-_
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 COLT 200_-_ Secured Notes and the
other assets of the Trust;
(b) to issue the CARAT 200_-_ Notes pursuant to the CARAT Indenture
and the CARAT 200_-_ Certificates pursuant to this Agreement, and to sell,
transfer or exchange the CARAT 200_-_ Notes and the CARAT 200_-_ Certificates;
(c) to make payments to the CARAT 200_-_ Noteholders and the CARAT
200_-_ Certificateholders, and to pay the organizational, start-up and
transactional expenses of the Trust;
(d) to assign, grant, transfer, pledge, mortgage and convey the CARAT
Trust Estate pursuant to the terms of the CARAT Indenture and to hold, manage
and distribute to the CARAT 200_-_ Certificateholders pursuant to the terms of
this Agreement and the Trust Sale and Administration Agreement any portion of
the CARAT Trust Estate released from the lien of, and remitted to the Trust
pursuant to, the CARAT Indenture;
(e) to enter into and perform its obligations and exercise its rights
under the CARAT Basic Documents to which it is to be a party;
(f) to enter into any interest rate swaps and caps and other
derivative instruments in connection with the CARAT 200_-_ Notes and the CARAT
200_-_ Certificates;
(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; and
(h) subject to compliance with the CARAT Basic Documents, to engage in
such other activities as may be required in connection with conservation of the
CARAT Owner Trust Estate and the making of distributions to the Securityholders.
The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the CARAT Basic Documents.
Section 2.4 Appointment of CARAT Owner Trustee. The Seller hereby appoints
the CARAT 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 CARAT Owner Trust Estate. The
Seller has sold, assigned, transferred, conveyed and set over to the CARAT Owner
Trustee, as of ____, 200_, the sum of $1. The CARAT Owner Trustee hereby
acknowledges receipt in trust from the Seller, as of ____, 200_, of the
foregoing contribution, which constituted the initial CARAT Owner Trust Estate
and has been or will 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 CARAT Owner Trustee, promptly reimburse the CARAT
Owner Trustee for any such expenses paid by the CARAT Owner Trustee.
Section 2.6 Declaration of Trust. The CARAT Owner Trustee hereby declares
that it shall hold the CARAT Owner Trust Estate (in the name of the Trust and
not in the CARAT Owner Trustee's name for the Trust, except as required by, and
in accordance with, Section 2.8)
2
in trust upon and subject to the conditions set forth herein for the use and
benefit of the CARAT 200_-_ Certificateholders, subject to the obligations of
the Trust under the CARAT Basic Documents. It is the intention of the parties
hereto that the Trust constitute a statutory trust under the Statutory Trust
Act, that this Agreement constitute the governing instrument of such statutory
trust and that the CARAT 200_-_ Certificates represent the beneficial interests
therein. The rights of the CARAT 200_-_ Certificateholders shall be determined
as set forth herein and in the Statutory Trust Act and the relationship between
the parties hereto created by this Agreement shall not constitute indebtedness
for any purpose. Effective as of the date hereof, the CARAT Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Act with respect to accomplishing the purposes of the Trust.
Section 2.7 Liability of the CARAT 200_-_ Certificateholders. CARAT 200_-_
Certificateholders and holders of beneficial interests therein shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of Delaware.
Section 2.8 Title to Trust Property. Legal title to all the CARAT 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 CARAT Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be transferred to and vested in the CARAT
Owner Trustee, a co-trustee and/or a separate trustee, as the case may be. Any
such trustee shall take such part of the CARAT Owner Trust Estate subject to the
security interest of the CARAT Indenture Trustee therein established under the
CARAT Indenture. Such trustee's acceptance of its appointment shall constitute
acknowledgment of such security interest and shall constitute a Grant to the
CARAT Indenture Trustee of a security interest in all property held by such
trustee. Any such trustee shall prepare and file all such financing statements
naming such trustee as debtor that are necessary or advisable to perfect, make
effective or continue the lien and security interest of the CARAT Indenture
Trustee.
Section 2.9 Situs of Trust. The Trust shall be located and administered in
the States of Delaware or New York. All bank accounts maintained by the CARAT
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 CARAT Owner Trustee from having employees within or without the
State of Delaware. Payments shall be received by the Trust only in Delaware or
New York, and payments shall be made by the Trust only from Delaware or New
York. The only office of the Trust shall be the Corporate Trust Office in
Delaware.
Section 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the CARAT 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 COLT 200_-_ Secured Notes contemplated to be transferred to the
Trust pursuant to the Trust Sale and Administration Agreement.
3
(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 any other CARAT Basic Documents to which the Seller is a party,
and to carry out its terms, the Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer as
part of the Trust and the Seller has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and any other CARAT Basic Documents to which the Seller is a party,
and the fulfillment of the terms of this Agreement and any other CARAT Basic
Documents to which the Seller is a party, do not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement or other instrument to which
the Seller is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the CARAT
Basic Documents), or violate any law or, to the best of the Seller's knowledge,
any order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties.
Section 2.11 Tax Treatment. As long as the Seller is the sole owner of the
CARAT 200_-_ Certificates, the Seller and the CARAT Owner Trustee, by entering
into this Agreement, (a) express their intention that the Trust shall be
disregarded for federal income tax purposes and shall be treated as a division
of the Seller and (b) agree that Section 5.5 of this Agreement shall not be
applicable. If the Seller is not the sole owner of the CARAT 200_-_
Certificates, through sale of the CARAT 200_-_ Certificates, issuance by the
Trust of additional CARAT 200_-_ Certificates to a Person other than the Seller
or otherwise, the Seller and the CARAT Owner Trustee, by entering into this
Agreement, and the CARAT 200_-_ Certificateholders, by acquiring any CARAT
200_-_ Certificates or interest therein, (i) express their intention that the
CARAT 200_-_ Certificates shall 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 CARAT 200_-_ Certificates are
owned solely by the Seller or by such single Person, or (B) a partnership for
federal income tax purposes if the CARAT 200_-_ Certificates are owned by more
than one Person and (ii) unless otherwise required by the appropriate taxing
authorities, agree to treat the CARAT 200_-_ 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.
4
ARTICLE III
THE CARAT 200_-_ CERTIFICATES
Section 3.1 Initial Beneficial Ownership. As of the formation of the Trust
by the contribution by the Seller pursuant to Section 2.5 and until the issuance
of the CARAT 200_-_ Certificates, the Seller has been the sole beneficial owner
of the Trust.
Section 3.2 Form of the CARAT 200_-_ Certificates.
(a) The CARAT 200_-_ Certificates shall be substantially in the form
of Exhibit A. The CARAT 200_-_ Certificates shall represent the entire
beneficial interest in the Trust. The CARAT 200_-_ Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the CARAT Owner Trustee. CARAT 200_-_ 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 CARAT 200_-_ Certificates or did not hold such offices at the date of
authentication and delivery of such CARAT 200_-_ Certificates.
(b) The CARAT 200_-_ 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 CARAT 200_-_ Certificates, as evidenced by their execution of such CARAT
200_-_ Certificates.
(c) The CARAT 200_-_ Certificates shall be issued in fully-registered
form. The terms of the CARAT 200_-_ 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 COLT 200_-_ Secured Notes to the Trust pursuant to the Trust Sale
and Administration Agreement, the CARAT Owner Trustee shall cause a single CARAT
200_-_ Certificate representing the entire beneficial interest in the Trust to
be executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller. Such
CARAT 200_-_ Certificate shall be issued to and held by the Seller, as the
initial CARAT 200_-_ Certificateholder. No CARAT 200_-_ Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such CARAT 200_-_ Certificate a
certificate of authentication substantially in the form set forth in Exhibit A,
executed by the CARAT Owner Trustee or ______________, as the CARAT Owner
Trustee's authenticating agent, by manual signature. Such authentication shall
constitute conclusive evidence that such CARAT 200_-_ Certificate shall have
been duly authenticated and delivered hereunder. All CARAT 200_-_ Certificates
shall be dated the date of their authentication.
5
Section 3.4 Registration; Registration of Transfer and Exchange of CARAT
200_-_ 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 CARAT
Owner Trustee shall provide for the registration of CARAT 200_-_ Certificates
and of transfers and exchanges of CARAT 200_-_ Certificates as provided herein;
provided, however, that no CARAT 200_-_ Certificate may be subdivided upon
transfer or exchange such that the denomination of any resulting CARAT 200_-_
Certificate is less than $20,000. ______________ shall be the initial
Certificate Registrar. Upon any resignation of a Certificate Registrar, the
CARAT Owner Trustee shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Certificate Registrar.
(b) The initial CARAT 200_-_ Certificateholder may at any time,
without consent of the Noteholders, sell, transfer, convey or assign in any
manner its rights to and interests in the CARAT 200_-_ Certificates, provided,
however, that: (i) such action shall not result in a reduction or withdrawal of
the rating of any class of CARAT 200_-_ Notes, (ii) the CARAT 200_-_
Certificateholder shall provide to the Owner Trustee and the Indenture Trustee
an opinion of independent counsel that such action shall 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
shall agree to take positions for tax purposes consistent with the tax positions
agreed to be taken by the CARAT 200_-_ Certificateholder, and (iv) the
conditions set forth in Section 3.4(h) shall have been satisfied. In addition,
no transfer of a CARAT 200_-_ Certificate shall be registered unless the
transferee shall have provided to the Owner Trustee and the Certificate
Registrar an opinion of counsel that in connection with such transfer no
registration of the CARAT 200_-_ Certificates is required under the Securities
Act or applicable state law or that such transfer is otherwise being made in
accordance with all applicable federal and state securities laws. In connection
with any transfer of less than all of the interests in the CARAT 200_-_
Certificates, the transferor and the transferee shall specify the respective
interests in the CARAT 200_-_ Certificates to be held by transferor and
transferee, which interests may be determined by a formula or on any other basis
agreed by transferor and transferee. If agreed by transferor and transferee,
different interests may be used for distributions of proceeds and for purposes
of voting the CARAT 200_-_ Certificates, and the transferor shall notify the
Owner Trustee of any such agreement in connection with such transfer.
(c) If the Seller is no longer the sole CARAT 200_-_
Certificateholder, the Trust Administrator shall promptly prepare amendments
(subject to the provisions regarding amendments in the applicable Basic
Documents) to the Basic Documents to the extent necessary to reflect the
issuance of book-entry certificates, the establishment of the Certificate
Distribution Account and the making of distributions to the CARAT 200_-_
Certificateholders and such other matters as shall be agreed between the Seller
and the Owner Trustee. The expense of the foregoing amendments shall be paid by
the Trust Administrator.
(d) Upon surrender for registration of transfer of any CARAT 200_-_
Certificate at the office or agency maintained pursuant to Section 3.8, the
CARAT Owner Trustee shall execute on behalf of the Trust, authenticate and
deliver (or shall cause
6
______________ as its authenticating agent to authenticate and deliver), in the
name of the designated transferee or transferees, one or more new CARAT 200_-_
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the CARAT Owner Trustee or any authenticating agent.
(e) At the option of a Holder, CARAT 200_-_ Certificates may be
exchanged for other CARAT 200_-_ Certificates of authorized denominations of a
like aggregate principal amount upon surrender of the CARAT 200_-_ Certificates
to be exchanged at the Corporate Trust Office maintained pursuant to Section
3.8. Whenever any CARAT 200_-_ Certificates are so surrendered for exchange, the
CARAT 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 CARAT 200_-_ Certificates dated the date
of authentication by the CARAT Owner Trustee or any authenticating agent. Such
CARAT 200_-_ Certificates shall be delivered to the Holder making the exchange.
(f) Every CARAT 200_-_ Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the CARAT 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 CARAT 200_-_ Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed or otherwise disposed of by the CARAT Owner Trustee or Certificate
Registrar in accordance with its customary practice.
(g) The CARAT 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 CARAT Owner Trustee in connection with any
transfer or exchange of CARAT 200_-_ Certificates.
(h) The CARAT 200_-_ Certificates (or an interest therein) may be
acquired by or for the account of a Benefit Plan only if (a)(i) the CARAT 200_-_
Certificates are eligible to be purchased under, and satisfy all conditions for
relief under, one of the underwriter exemptions listed in footnote 1 of
Department of Labor Prohibited Transaction Exemption 2002-41 (67 Fed. Reg. 54487
(August 22, 2002)), or any amendments thereto; and (ii) it is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D under the Securities Act,
and any holder of the CARAT 200_-_ Certificates shall be deemed to have
represented and warranted that it is an "accredited investor"; or (b) it is an
insurance company general account that satisfies the requirements of Section III
of Prohibited Transaction Class Exemption 95-60.
Section 3.5 Mutilated, Destroyed, Lost or Stolen CARAT 200_-_ Certificates.
(a) If (i) any mutilated CARAT 200_-_ Certificate is surrendered to
the Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any CARAT 200_-_ Certificate,
and (ii) there is delivered to the Certificate Registrar, the CARAT 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 CARAT Owner Trustee that such CARAT 200_-_ Certificate has been
acquired by a protected purchaser, the CARAT Owner Trustee shall execute on
behalf of
7
the Trust and the CARAT 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
CARAT 200_-_ Certificate, a replacement CARAT 200_-_ Certificate in authorized
denominations of a like aggregate principal amount; provided, however, that if
any such destroyed, lost or stolen CARAT 200_-_ Certificate, but not a mutilated
CARAT 200_-_ Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement CARAT 200_-_ Certificate the
CARAT Owner Trustee may pay such destroyed, lost or stolen CARAT 200_-_
Certificate when so due or payable.
(b) If, after the delivery of a replacement CARAT 200_-_ Certificate
or payment in respect of a destroyed, lost or stolen CARAT 200_-_ Certificate
pursuant to Section 3.5(a), a protected purchaser of the original CARAT 200_-_
Certificate in lieu of which such replacement CARAT 200_-_ Certificate was
issued presents for payment such original CARAT 200_-_ Certificate, the CARAT
Owner Trustee shall be entitled to recover such replacement CARAT 200_-_
Certificate (and any distributions or payments made with respect thereto) or
such payment from the Person to whom it was delivered or any Person taking such
replacement CARAT 200_-_ Certificate from such Person to whom such replacement
CARAT 200_-_ 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 CARAT Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement CARAT 200_-_
Certificate under this Section 3.5, the CARAT Owner Trustee may require the
payment by the Holder of such CARAT 200_-_ 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 CARAT Owner Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate CARAT 200_-_ Certificate issued pursuant to this
Section 3.5 in replacement of any mutilated, destroyed, lost or stolen CARAT
200_-_ Certificate shall constitute an original additional beneficial interest
in the Trust, whether or not the mutilated, destroyed, lost or stolen CARAT
200_-_ 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 CARAT 200_-_ 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 CARAT 200_-_
Certificates.
Section 3.6 Persons Deemed CARAT 200_-_ Certificateholders. Prior to due
presentation of a CARAT 200_-_ Certificate for registration of transfer, the
CARAT Owner Trustee or the Certificate Registrar may treat the Person in whose
name any CARAT 200_-_ Certificate shall be registered in the Certificate
Register as the CARAT 200_-_ Certificateholder of such CARAT 200_-_ Certificate
for the purpose of receiving distributions pursuant to Article V and for all
other purposes whatsoever, and neither the CARAT Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
8
Section 3.7 Access to List of CARAT 200_-_ Certificateholders' Names and
Addresses. The CARAT Owner Trustee shall furnish or cause to be furnished to the
Trust Administrator and the Seller, within 15 days after receipt by the CARAT
Owner Trustee of a request therefor from the Trust Administrator or the Seller,
in writing, a list of the names and addresses of the CARAT 200_-_
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a CARAT 200_-_ Certificate, shall be deemed to have agreed not to
hold any of the Trust Administrator, the Seller or the CARAT 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 CARAT Owner Trustee
shall maintain in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where CARAT 200_-_ Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the CARAT Owner Trustee in respect of the CARAT 200_-_ Certificates and the
CARAT Basic Documents may be served. The CARAT Owner Trustee initially
designates the offices of ______________, ________, ______, ____, as its
principal office for such purposes. The CARAT Owner Trustee shall give prompt
written notice to the Seller, to the Trust Administrator, and to the CARAT
200_-_ 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 CARAT 200_-_
Certificateholders from the Certificate Distribution Account pursuant to Section
5.2 and shall report the amounts of such distributions to the CARAT Owner
Trustee and the Trust Administrator; provided, however, that no such reports
shall be required so long as the Seller is the sole CARAT 200_-_
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 CARAT Owner Trustee may revoke such power
and remove the Paying Agent if the CARAT Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be ______________, and any co-paying agent chosen by ______________, and
acceptable to the CARAT Owner Trustee. ______________ shall be permitted to
resign as Paying Agent upon 30 days' written notice to the CARAT Owner Trustee.
If ______________ shall no longer be the Paying Agent, the CARAT Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The CARAT Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the CARAT Owner Trustee to execute and
deliver to the CARAT Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the CARAT 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 CARAT 200_-_
Certificateholders in trust for the benefit of the CARAT 200_-_
Certificateholders entitled thereto until such sums shall be paid to such CARAT
200_-_ Certificateholders. The Paying Agent shall return all unclaimed funds to
the CARAT Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the CARAT Owner Trustee. The
provisions of Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the CARAT Owner
Trustee also in its role as Paying Agent, for so long as the CARAT 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
9
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 3.10 Seller as CARAT 200_-_ Certificateholder. The Seller in its
individual or any other capacity may become the owner or pledgee of CARAT 200_-_
Certificates and may otherwise deal with the CARAT Owner Trustee or its
Affiliates as if it were not the Seller.
ARTICLE IV
ACTIONS BY CARAT OWNER TRUSTEE
Section 4.1 Prior Notice to CARAT 200_-_ Certificateholders with Respect to
Certain Matters. The CARAT Owner Trustee shall not take action with respect to
the following matters, unless (i) the CARAT Owner Trustee shall have notified
the CARAT 200_-_ Certificateholders in writing of the proposed action at least
30 days and not more than 45 days before the taking of such action, and (ii) the
CARAT 200_-_ Certificateholders shall not have notified the CARAT Owner Trustee
in writing prior to the 30th day after such notice is given that such CARAT
200_-_ 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 COLT 200_-_ Secured Note or an action by the CARAT
Indenture Trustee pursuant to the CARAT Indenture) and the compromise of any
action, claim or lawsuit brought by or against the Trust (other than an action
to collect on a COLT 200_-_ Secured Note or an action by the CARAT Indenture
Trustee pursuant to the CARAT 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 CARAT Indenture by a supplemental indenture
in circumstances where the consent of any CARAT 200_-_ Noteholder is required;
(d) the amendment of the CARAT Indenture by a supplemental indenture
in circumstances where the consent of any CARAT 200_-_ Noteholder is not
required and such amendment materially adversely affects the interests of the
CARAT 200_-_ Certificateholders;
(e) the amendment, change or modification of the Trust Sale and
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 CARAT 200_-_ Certificateholders; or
(f) the appointment pursuant to the CARAT Indenture of a successor
Note Registrar, Paying Agent or CARAT 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 CARAT Indenture Trustee or Certificate
Registrar of its obligations under the CARAT Indenture or this Agreement, as
applicable.
Section 4.2 Action by CARAT 200_-_ Certificateholders with Respect to
Certain Matters. The CARAT Owner Trustee shall not have the power, except upon
the written direction of the CARAT 200_-_ Certificateholders, to remove the
Trust Administrator under the Trust
10
Sale and Administration Agreement pursuant to Section 7.02 thereof, appoint a
successor Trust Administrator under the Trust Sale and Administration Agreement
or except as expressly provided in the CARAT Basic Documents, sell the COLT
200_-_ Secured Notes or any interest therein after the termination of the CARAT
Indenture. The CARAT Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the CARAT 200_-_
Certificateholders.
Section 4.3 Action by CARAT 200_-_ Certificateholders with Respect to
Bankruptcy. Notwithstanding any prior termination of this Agreement, the CARAT
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
CARAT 200_-_ Certificateholders (including the Seller) and the delivery to the
CARAT Owner Trustee by each such CARAT 200_-_ Certificateholder of a certificate
certifying that such CARAT 200_-_ Certificateholder reasonably believes that the
Trust is insolvent; provided, however, that under no circumstances shall the
CARAT 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 CARAT 200_-_ Certificateholders' Power. The
CARAT 200_-_ Certificateholders shall not direct the CARAT 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 CARAT Owner Trustee under this Agreement,
including Section 2.3 of this Agreement, or any of the CARAT Basic Documents,
nor shall the CARAT Owner Trustee be obligated to follow any such direction, if
given. The CARAT 200_-_ Certificateholders shall not and shall not direct the
CARAT Owner Trustee to take action that would violate the provisions of Section
6.1 and, if given, the CARAT 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 CARAT
200_-_ Certificateholders under this Agreement shall be effective if such action
is taken or such consent is given or withheld by the Holders of CARAT 200_-_
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
CARAT 200_-_ Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Holders of CARAT 200_-_ Certificates evidencing not less
than a majority of the Voting Interests at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account.
(a) Except as otherwise provided in Section 5.2, the Trust
Administrator, for the benefit of the CARAT 200_-_ Certificateholders, shall
establish and maintain in the name of the Trust an Eligible Deposit Account
known as the Capital Auto Receivables Asset Trust 200_-_ 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 CARAT 200_-_ Certificateholders.
11
(b) The Trust shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein, in the CARAT
Indenture or in the Trust Sale and Administration Agreement, the Certificate
Distribution Account shall be under the sole dominion and control of the CARAT
Owner Trustee for the benefit of the CARAT 200_-_ Certificateholders. If, at any
time, the Certificate Distribution Account ceases to be an Eligible Deposit
Account, the CARAT Owner Trustee (or the Trust Administrator on behalf of the
CARAT Owner Trustee, if the Certificate Distribution Account is not then held by
the CARAT 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 CARAT Owner Trustee shall
distribute to the CARAT 200_-_ Certificateholders, on a pro rata basis, amounts
equal to the amounts deposited in the Certificate Distribution Account pursuant
to Sections 4.05 and 8.01(b) of the Trust Sale and Administration Agreement on
or prior to such Distribution Date. Notwithstanding the foregoing or anything
else to the contrary in this Agreement or the other CARAT Basic Documents, if
and for so long as CARAT 200_-_ 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 CARAT 200_-_ Certificates (including the
final distribution as contemplated by Section 7.1(c)) required hereunder or
under the Trust Sale and Administration Agreement shall be made directly to the
Seller by the CARAT Indenture Trustee (whether or not the Trust Sale and
Administration Agreement otherwise contemplates deposit into the Certificate
Distribution Account) and the CARAT Owner Trustee shall have no duty or
liability to see to such distribution.
(b) On each Distribution Date, the CARAT Owner Trustee shall send to
each CARAT 200_-_ Certificateholder the statement provided to the CARAT Owner
Trustee by the Trust Administrator pursuant to Section 4.07(a) of the Trust Sale
and Administration Agreement on such Distribution Date setting forth, among
other things, the amount distributed on the CARAT 200_-_ Certificates and the
Administration 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 CARAT Owner Trustee if and for so long as the Seller is the sole
CARAT 200_-_ Certificateholder.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a CARAT 200_-_ Certificateholder, such tax shall
reduce the amount otherwise distributable to the CARAT 200_-_ Certificateholder
in accordance with this Section 5.2; provided, however, that the CARAT Owner
Trustee shall not have an obligation to withhold any such amount if and for so
long as the Seller is the sole CARAT 200_-_ Certificateholder. The CARAT Owner
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the CARAT 200_-_ Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the CARAT Owner
12
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 CARAT
200_-_ Certificateholder shall be treated as cash distributed to such CARAT
200_-_ 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.
CARAT 200_-_ Certificateholder), the CARAT Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section 5.2(c). If a
CARAT 200_-_ Certificateholder wishes to apply for a refund of any such
withholding tax, the CARAT Owner Trustee shall reasonably cooperate with such
CARAT 200_-_ Certificateholder in making such claim so long as such CARAT 200_-_
Certificateholder agrees to reimburse the CARAT Owner Trustee for any
out-of-pocket expenses incurred.
(d) If the CARAT Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the CARAT Indenture, the CARAT Owner
Trustee shall, upon notice from the CARAT Indenture Trustee that such funds
exist, submit on behalf of the Trust an Issuer Order to the CARAT Indenture
Trustee pursuant to Section 3.3(e) of the CARAT Indenture instructing the CARAT
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 CARAT 200_-_ Certificateholders on any Distribution Date
shall be made to each CARAT 200_-_ Certificateholder of record on the related
Record Date (i) by wire transfer, in immediately available funds, to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such CARAT 200_-_ Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Record Date or if not, by check mailed to such CARAT 200_-_
Certificateholder at the address of such CARAT 200_-_ Certificateholder
appearing in the Certificate Register.
Section 5.4 Accounting and Reports to the CARAT 200_-_ Certificateholders,
the Internal Revenue Service and Others. The CARAT 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 CARAT 200_-_
Certificateholder, as may be required by the Code and applicable Treasury
Regulations or otherwise, such information as may be required to enable each
CARAT 200_-_ Certificateholder to prepare its federal income tax return, file
such tax returns relating to the Trust and make such elections as may from time
to time be required or appropriate under any applicable state or federal statute
or rule or regulation thereunder so as to maintain the Trust's characterization
as an entity described in clause (a) of Section 2.11 for federal income tax
purposes, cause such tax returns to be signed in the manner required by law and
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.2(c) with respect to income or distributions to CARAT
200_-_ Certificateholders. If the Internal Revenue Service were to contend
successfully that the Trust is not a disregarded entity but is rather a
partnership for federal income tax purposes, the Trust shall allocate items of
income, gain, deduction and loss to the partners of the Trust in accordance with
their economic interests in the Trust. With respect to interest expense of the
Trust, the Trust shall allocate to the CARAT 200_-_ Certificateholders their
share of the entire amount of such interest expense.
13
Section 5.5 Signature on Returns; Other Tax Matters. The CARAT Owner
Trustee shall sign on behalf of the Trust any and all tax returns of the Trust,
unless applicable law requires a CARAT 200_-_ 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 CARAT OWNER TRUSTEE
Section 6.1 Duties of CARAT Owner Trustee.
(a) The CARAT Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and the other
CARAT Basic Documents, including the administration of the Trust in the interest
of the CARAT 200_-_ Certificateholders, subject to the CARAT 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 CARAT Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the CARAT Basic Documents to the extent the Trust Administrator has agreed in
the Trust Sale and Administration Agreement to perform any act or to discharge
any duty of the CARAT Owner Trustee hereunder or under any CARAT Basic Document,
and the CARAT Owner Trustee shall not be liable for the default or failure of
the Trust Administrator to carry out its obligations under the Trust Sale and
Administration Agreement.
(c) In the absence of bad faith on its part, the CARAT Owner Trustee
may conclusively rely upon certificates or opinions furnished to the CARAT 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 CARAT 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 CARAT 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 CARAT 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 CARAT Owner Trustee was negligent in ascertaining the pertinent facts;
(iii) the CARAT 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; and
(iv) the CARAT Owner Trustee shall not be personally liable for
special, consequential or punitive damages, however styled, including lost
profits.
14
(e) Subject to Sections 5.1 and 5.2, monies received by the CARAT
Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Trust Sale and Administration Agreement and may be
deposited under such general conditions as may be prescribed by law, and the
CARAT Owner Trustee shall not be liable for any interest thereon.
(f) The CARAT 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 CARAT Owner
Trustee, result in the Trust's becoming taxable as a corporation for federal
income tax purposes. The CARAT 200_-_ Certificateholders shall not direct the
CARAT Owner Trustee to take action that would violate the provisions of this
Section 6.1.
Section 6.2 Rights of CARAT Owner Trustee. The CARAT Owner Trustee is
authorized and directed to execute and deliver the CARAT Basic Documents and
each certificate or other document attached as an exhibit to or contemplated by
the CARAT Basic Documents to which the Trust is to be a party, in such form as
the Seller shall approve as evidenced conclusively by the CARAT Owner Trustee's
execution thereof. In addition to the foregoing, the CARAT Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the CARAT Basic Documents. The CARAT Owner Trustee is further
authorized from time to time to take such action as the Trust Administrator
recommends and directs in writing with respect to the CARAT Basic Documents.
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 CARAT Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the CARAT Owner Trustee by reason of the
transactions contemplated by this Agreement or any CARAT Basic Document shall
look only to the CARAT Owner Trust Estate for payment or satisfaction thereof.
The CARAT 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 CARAT Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the CARAT Owner Trust Estate upon the terms
of the CARAT Basic Documents and this Agreement. The CARAT Owner Trustee shall
not be liable or accountable hereunder or under any CARAT 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 CARAT Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the CARAT Owner Trustee shall at no time have any responsibility
or liability for, or with respect to, the legality, validity and enforceability
of any COLT 200_-_ Secured Note, or the perfection and priority of any security
interest created by any COLT 200_-_ Secured Note in any Series 200_-_ Lease
Asset or the maintenance of any such perfection and priority, or for, or with
respect to, the sufficiency of the CARAT Owner Trust Estate or its ability to
generate the payments to be distributed to CARAT 200_-_ Certificateholders under
this Agreement or to CARAT 200_-_ Noteholders under the CARAT Indenture,
including, without limitation: the existence, condition and ownership of any
Series 200_-_ Lease Asset securing a
15
COLT 200_-_ Secured Note; the existence and enforceability of any insurance
thereon; the existence and contents of any COLT 200_-_ Secured Note on any
computer or other record thereof; the validity of the assignment of any COLT
200_-_ Secured Note to the Trust or of any intervening assignment; the
completeness of any COLT 200_-_ Secured Note; the performance or enforcement of
any COLT 200_-_ Secured Note; the compliance by the Seller or the Trust
Administrator with any warranty or representation made under any CARAT Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Trustee or the Trust Administrator or any
sub-administrator taken in the name of the CARAT Owner Trustee;
(b) the CARAT 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 Trust Administrator or any CARAT 200_-_ Certificateholder;
(c) no provision of this Agreement or any CARAT Basic Document shall
require the CARAT 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 CARAT Basic Document, if the CARAT Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the CARAT Owner Trustee be liable for
indebtedness evidenced by or arising under any of the CARAT Basic Documents,
including the principal of and interest on the CARAT 200_-_ Notes;
(e) the CARAT Owner Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement other than as explicitly set forth herein or for the
due execution hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the CARAT Owner Trust Estate or for, or
in respect of, the validity or sufficiency of the CARAT Basic Documents, the
CARAT 200_-_ Notes, the CARAT 200_-_ Certificates (other than the certificate of
authentication on the CARAT 200_-_ Certificates) or of any COLT 200_-_ Secured
Notes or any related documents, and the CARAT Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any CARAT 200_-_ Noteholder
or to any CARAT 200_-_ Certificateholder, other than as expressly provided for
herein and in the CARAT Basic Documents;
(f) the CARAT Owner Trustee shall not be liable for the default or
misconduct of the CARAT Indenture Trustee, the Seller or the Trust Administrator
under any of the CARAT Basic Documents or otherwise and the CARAT Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the CARAT Basic Documents that are required to be
performed by the CARAT Indenture Trustee under the CARAT Indenture or the Trust
Administrator under the Pooling and Administration Agreement or the Trust Sale
and Administration Agreement;
(g) the CARAT 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
16
litigation under this Agreement or otherwise or in relation to this Agreement or
any CARAT Basic Document, at the request, order or direction of any of the CARAT
200_-_ Certificateholders, unless such CARAT 200_-_ Certificateholders have
offered to the CARAT Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the CARAT
Owner Trustee therein or thereby; the right of the CARAT Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any CARAT Basic
Document shall not be construed as a duty, and the CARAT Owner Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act; and
(h) notwithstanding anything to the contrary contained herein or in
any other CARAT Basic Document, the CARAT Owner Trustee shall not be required to
execute, deliver or certify on behalf of the Trust or any other Person any
filings, certificates, affidavits or other instruments required under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002; notwithstanding any Person's right to instruct the
CARAT Owner Trustee, neither the CARAT Owner Trustee nor any agent, employee,
director or officer of the CARAT Owner Trustee shall have any obligation to
execute any certificates or other documents required pursuant to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the rules and regulations promulgated pursuant
thereto, and the refusal to comply with any such instructions shall not
constitute a default or breach under any CARAT Basic Document; if the CARAT
Owner Trustee, on behalf of the Trust, does not execute, deliver or certify any
filings, certificates, affidavits or other instruments required under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, an Officer of the Trust Administrator shall, on
behalf of the Trust, execute, deliver or make such certification.
Section 6.4 Action Upon Instruction by CARAT 200_-_ Certificateholders.
(a) Subject to Section 4.4, the CARAT 200_-_ Certificateholders may by
written instruction direct the CARAT Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written instruction of the
CARAT 200_-_ Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the CARAT Owner Trustee shall not
be required to take any action hereunder or under any CARAT Basic Document if
the CARAT Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability on the
part of the CARAT Owner Trustee or is contrary to the terms hereof or of any
CARAT Basic Document or is otherwise contrary to law.
(c) Whenever the CARAT Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any CARAT Basic Document, or is unsure as to the application,
intent, interpretation or meaning of any provision of this Agreement or the
CARAT Basic Documents, the CARAT Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the CARAT 200_-_
Certificateholders requesting instruction as to the course of action to be
adopted, and, to the extent the CARAT Owner Trustee acts in good faith in
accordance with any such instruction received, the CARAT Owner Trustee shall not
be liable on account of such action to any Person. If the CARAT 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
17
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 CARAT Basic Documents, and
as it shall deem to be in the best interests of the CARAT 200_-_
Certificateholders, and the CARAT Owner Trustee shall have no liability to any
Person for any such action or inaction.
Section 6.5 Furnishing of Documents. The CARAT Owner Trustee shall furnish
to the CARAT 200_-_ 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 CARAT Owner Trustee under the CARAT Basic Documents.
Section 6.6 Representations and Warranties of CARAT Owner Trustee. The
CARAT Owner Trustee hereby represents and warrants to the Seller, for the
benefit of the CARAT 200_-_ Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation. It has
satisfied the eligibility requirements set forth in Section 6.13.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of the CARAT Owner Trustee or any order, writ, judgment
or decree of any court, arbitrator or governmental authority applicable to the
CARAT Owner Trustee or any of its assets, (ii) shall not violate any provision
of the corporate charter or by-laws of the CARAT Owner Trustee or (iii) shall
not violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have a
materially adverse effect on the CARAT Owner Trustee's performance or ability to
perform its duties as CARAT Owner Trustee under this Agreement or on the
transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by the CARAT
Owner Trustee and constitutes the legal, valid and binding agreement of the
CARAT 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 CARAT Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report,
18
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 CARAT 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 CARAT 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
CARAT 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 CARAT
Basic Documents, the CARAT 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 CARAT Basic Documents,
CARAT 200_-_ Certificate, CARAT 200_-_ Note or other documents related thereto
on behalf of the CARAT Owner Trustee) pursuant to agreements entered into with
any of them, and the CARAT 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 CARAT 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 CARAT 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 CARAT Basic Document.
Section 6.8 CARAT Owner Trustee May Own CARAT 200_-_ Certificates and CARAT
200_-_ Notes. ______________ or any successor CARAT Owner Trustee in its
individual or any other capacity may become the owner or pledgee of CARAT 200_-_
Certificates or CARAT 200_-_ Notes and may deal with the Seller, the CARAT
Indenture Trustee and the Trust Administrator in transactions in the same manner
as it would have if it were not the CARAT Owner Trustee.
Section 6.9 Compensation and Indemnity. The CARAT Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Trust Administrator
and the CARAT Owner Trustee, and the CARAT Owner Trustee, any paying agent,
registrar, authenticating agent or co-trustee shall be entitled to be reimbursed
by the Trust Administrator for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, custodians, nominees, representatives, experts and external counsel as
the CARAT Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Trust Administrator
shall indemnify the CARAT 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
Administration Agreement. The indemnities contained in this Section 6.9 shall
survive the resignation or removal of the CARAT Owner Trustee or the termination
of this Agreement. Any amounts paid to the CARAT
19
Owner Trustee pursuant to this Article VI shall be deemed not to be a part of
the CARAT Owner Trust Estate immediately after such payment.
Section 6.10 Replacement of CARAT Owner Trustee.
(a) The CARAT Owner Trustee may give notice of its intent to resign
and be discharged from the trusts hereby created by giving notice thereof to the
Trust Administrator provided, however, that no such resignation shall become
effective, and the CARAT Owner Trustee shall not resign, prior to the time set
forth in Section 6.10(c). If no successor CARAT 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 CARAT Owner Trustee giving such
notice may petition any court of competent jurisdiction for the appointment of a
successor CARAT Owner Trustee. The Trust Administrator shall remove the CARAT
Owner Trustee if:
(i) the CARAT 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 Trust Administrator;
(ii) the CARAT 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 CARAT Owner Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation; or
(iv) the CARAT Owner Trustee shall otherwise be incapable of
acting.
(b) If the CARAT Owner Trustee gives notice of its intent to resign or
is removed or if a vacancy exists in the office of CARAT Owner Trustee for any
reason the Trust Administrator shall promptly appoint a successor CARAT Owner
Trustee by written instrument, in duplicate (one copy of which instrument shall
be delivered to the outgoing CARAT Owner Trustee so removed and one copy to the
successor CARAT Owner Trustee) and shall pay all fees owed to the outgoing CARAT
Owner Trustee.
(c) Any resignation or removal of the CARAT Owner Trustee and
appointment of a successor CARAT 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 CARAT Owner Trustee to the outgoing CARAT Owner Trustee and the
Trust Administrator and all fees and expenses due to the outgoing CARAT Owner
Trustee are paid. Any successor CARAT 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
CARAT Owner Trustee. The Trust Administrator shall provide notice of such
resignation or removal of the CARAT Owner Trustee to the Rating Agencies.
20
(d) The predecessor CARAT Owner Trustee shall upon payment of its fees
and expenses deliver to the successor CARAT Owner Trustee all documents and
statements and monies held by it under this Agreement. The Trust Administrator
and the predecessor CARAT 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 CARAT Owner Trustee all such
rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor CARAT Owner Trustee
pursuant to this Section 6.10, the Trust Administrator shall mail notice of the
successor of such CARAT Owner Trustee to all CARAT 200_-_ Certificateholders,
the CARAT Indenture Trustee, the CARAT 200_-_ Noteholders and the Rating
Agencies.
Section 6.11 Merger or Consolidation of CARAT Owner Trustee. Any Person
into which the CARAT 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 CARAT Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
CARAT Owner Trustee, shall be the successor of the CARAT 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 CARAT Owner Trustee
shall mail notice of such merger or consolidation to the Rating Agencies.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the CARAT Owner Trust Estate or any COLT 200_-_ Secured Note
may at the time be located, the Trust Administrator and the CARAT Owner Trustee
acting jointly shall, at the expense of the Trust Administrator, have the power
and shall, at the expense of the Trust Administrator, execute and deliver all
instruments to appoint one or more Persons approved by the CARAT Owner Trustee
to act as co-trustee, jointly with the CARAT Owner Trustee, or as separate
trustee or trustees, of all or any part of the CARAT Owner Trust Estate, and to
vest in such Person (in the name of the Trust and not in such Person's name for
the Trust, except to the extent otherwise required by, and in accordance with,
Section 2.8), in such capacity, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 6.12, such powers, duties,
obligations, rights and trusts as the Trust Administrator and the CARAT Owner
Trustee may consider necessary or desirable. If the Trust Administrator shall
not have joined in such appointment within 15 days after the receipt by it of a
request so to do, the CARAT 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:
21
(i) all rights, powers, duties and obligations conferred or
imposed upon the CARAT Owner Trustee shall be conferred upon and exercised or
performed by the CARAT 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 CARAT 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 CARAT 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 CARAT 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 Trust Administrator and the CARAT Owner Trustee acting
jointly may at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any notice, request or other writing given to the CARAT 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 CARAT 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 CARAT Owner Trustee. Each such instrument shall be filed with the CARAT
Owner Trustee and a copy thereof given to the Trust Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
CARAT 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 CARAT Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for CARAT Owner Trustee. The CARAT
Owner Trustee shall at all times satisfy the requirement of Section 26(a)(1) of
the Investment Company Act. The CARAT Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Statutory Trust
Act; (b) be authorized to exercise corporate trust powers; (c) have a combined
capital and surplus of at least $50,000,000 and be subject to supervision or
examination by federal or state authorities; and (d) have (or have a parent
which has) a long-term unsecured debt rating of at least BBB- by Standard &
Poor's Ratings Services and at least Baa3 by ▇▇▇▇▇'▇ 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
22
recent report of condition so published. If at any time the CARAT Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.13, the CARAT Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the Trust shall
terminate in accordance with Section 3808 of the Statutory Trust Act and be of
no further force or effect on the final distribution by the CARAT Owner Trustee
of all monies or other property or proceeds of the CARAT Owner Trust Estate in
accordance with the terms of the CARAT Indenture, the Trust Sale and
Administration Agreement (including the exercise by the Trust Administrator of
its option to purchase the COLT 200_-_ Secured Notes pursuant to Section 8.01(a)
of the Trust Sale and Administration Agreement), the Interest Rate Swaps and
Article V. The bankruptcy, liquidation, dissolution, death or incapacity of any
CARAT 200_-_ Certificateholder shall not (x) operate to terminate this Agreement
or the Trust, (y) entitle such CARAT 200_-_ 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 CARAT Owner Trust Estate, or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Neither the Seller nor any CARAT 200_-_ 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 CARAT 200_-_ Certificateholders
shall surrender their CARAT 200_-_ Certificates to the Paying Agent for payment
of the final distribution and cancellation, shall be given by the CARAT Owner
Trustee by letter to CARAT 200_-_ Certificateholders mailed within five Business
Days of receipt of notice of such termination from the Trust Administrator given
pursuant to Section 8.01(c) of the Trust Sale and Administration Agreement,
stating: (i) the Distribution Date upon or with respect to which final payment
of the CARAT 200_-_ Certificates shall be made upon presentation and surrender
of the CARAT 200_-_ 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 CARAT 200_-_ Certificates
at the office of the Paying Agent therein specified. The CARAT Owner Trustee
shall give such notice to the Certificate Registrar (if other than the CARAT
Owner Trustee) and the Paying Agent at the time such notice is given to CARAT
200_-_ Certificateholders. Upon presentation and surrender of the CARAT 200_-_
Certificates, the Paying Agent shall cause to be distributed to CARAT 200_-_
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.2.
(d) If all of the CARAT 200_-_ Certificateholders shall not surrender
their CARAT 200_-_ Certificates for cancellation within six months after the
date specified in the written notice referred to in Section 7.1(c), the CARAT
Owner Trustee shall give a second
23
written notice to the remaining CARAT 200_-_ Certificateholders to surrender
their CARAT 200_-_ Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the CARAT 200_-_ Certificates shall not have been surrendered for
cancellation, the CARAT Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining CARAT 200_-_
Certificateholders concerning surrender of their CARAT 200_-_ Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable laws with respect to
escheat of funds, any funds remaining in the Trust after exhaustion of such
remedies in the preceding sentence shall be deemed property of the Seller and
distributed by the CARAT Owner Trustee to the Seller, and the CARAT Owner
Trustee shall have no further liability to the CARAT 200_-_ Certificateholders
with respect thereto.
(e) Upon the winding up and termination of the Trust in accordance
with Section 3808 of the Statutory Trust Act and this Section, the CARAT Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Act.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the CARAT Owner
Trustee without the consent of any of the CARAT 200_-_ Noteholders, or the CARAT
200_-_ Certificateholders (but with prior notice to 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 CARAT Basic Document, (iii) add or supplement any credit
enhancement for the benefit of the CARAT 200_-_ Noteholders or the CARAT 200_-_
Certificateholders (provided, however, that if any such addition shall affect
any class of CARAT 200_-_ Noteholders or CARAT 200_-_ Certificateholders
differently than any other class of CARAT 200_-_ Noteholders or CARAT 200_-_
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 CARAT 200_-_ Noteholders or the CARAT 200_-_ Certificateholders), (iv) add
to the covenants, restrictions or obligations of the Seller or the CARAT Owner
Trustee, (v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the CARAT 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 CARAT 200_-_ Noteholders or the
Unaffiliated Certificateholders.
Section 8.2 Amendments With Consent of CARAT 200_-_ Certificateholders and
CARAT 200_-_ Noteholders. This Agreement may also be amended from time to time
by the Seller and the CARAT Owner Trustee with the consent of CARAT 200_-_
Noteholders whose CARAT 200_-_ Notes evidence not less than a majority of the
Outstanding Amount of the Controlling Class as of the close of the preceding
Distribution Date and, if any Person other than
24
the Seller or an Affiliate of the Seller holds any CARAT 200_-_ Certificates,
the consent of CARAT 200_-_ Certificateholders whose CARAT 200_-_ 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 CARAT
200_-_ Notes or CARAT 200_-_ Certificates and of any CARAT 200_-_ Notes or CARAT
200_-_ 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 CARAT
200_-_ Notes or CARAT 200_-_ 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 CARAT 200_-_
Noteholders or the CARAT 200_-_ Certificateholders; provided, however, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on CARAT 200_-_
Secured Notes or distributions that shall be required to be made on any CARAT
200_-_ Note or the Interest Rate for any class of CARAT 200_-_ Notes or (b)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the holders of all CARAT 200_-_ Notes and all of the
Voting Interests with respect to CARAT 200_-_ Certificates then outstanding. The
CARAT 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 CARAT Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each CARAT
200_-_ Certificateholder, each Unaffiliated Certificateholder and the CARAT
Indenture Trustee.
(b) It shall not be necessary for the consent of CARAT 200_-_
Certificateholders or the CARAT 200_-_ Noteholders 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 CARAT 200_-_
Certificateholders and Unaffiliated Certificateholders provided for in this
Agreement or in any other CARAT Basic Document) and of evidencing the
authorization of the execution thereof by CARAT 200_-_ Certificateholders and
Unaffiliated Certificateholders shall be subject to such reasonable requirements
as the CARAT Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate
of Trust, the CARAT 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 CARAT Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment by it is authorized or permitted by this Agreement. The CARAT Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the CARAT Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
25
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Legal Title to CARAT Owner Trust Estate. The CARAT 200_-_
Certificateholders shall not have legal title to any part of the CARAT Owner
Trust Estate. The CARAT 200_-_ 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 CARAT 200_-_
Certificateholders to and in their ownership interest in the CARAT 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 CARAT Owner Trust Estate.
Section 9.2 Limitations on Rights of Others. Except for Section 9.12, the
provisions of this Agreement are solely for the benefit of the CARAT Owner
Trustee, the Seller, the CARAT 200_-_ Certificateholders, the Trust
Administrator and, to the extent expressly provided herein, the CARAT Indenture
Trustee and the CARAT 200_-_ 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 CARAT 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 CARAT 200_-_ Certificateholder to
bring a derivative action in the right of the Trust is hereby made expressly
subject to the following limitations and requirements:
(a) such CARAT 200_-_ Certificateholder must meet all requirements set
forth in the Statutory Trust Act; and
(b) no CARAT 200_-_ Certificateholder may bring a derivative action in
the right of the Trust without the prior written consent of CARAT 200_-_
Certificateholders owning, in the aggregate, a beneficial interest in CARAT
200_-_ Certificates representing 50% of the then outstanding interest in the
CARAT 200_-_ Certificates.
Section 9.4 Notices. All demands, notices and communications upon or to the
Seller, the Trust Administrator, the CARAT Indenture Trustee, the CARAT Owner
Trustee or the Rating Agencies under this Agreement shall be delivered as
specified in Appendix B to the Trust Sale and Administration 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 CARAT 200_-_ 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.
26
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 CARAT
Owner Trustee and each CARAT 200_-_ 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 CARAT 200_-_
Certificateholder shall bind the successors and assigns of such CARAT 200_-_
Certificateholder.
Section 9.8 No Petition. The CARAT Owner Trustee by entering this Trust
Agreement and each CARAT 200_-_ Certificateholder or CARAT 200_-_ Certificate
Owner by accepting a CARAT 200_-_ 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 this Agreement 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 CARAT 200_-_ Certificateholder by accepting a
CARAT 200_-_ Certificate (or any interest therein) acknowledges that such
Person's CARAT 200_-_ Certificate (or interest therein) represents beneficial
interests in the Trust only and does not represent interests in or obligations
of the Seller, the Trust Administrator, the CARAT Owner Trustee, the CARAT
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 CARAT 200_-_
Certificates or the CARAT Basic Documents. Except as expressly provided in the
CARAT Basic Documents, none of the Seller, the Trust Administrator or the CARAT
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 CARAT
200_-_ Certificates or the Trust's performance of, or omission to perform, any
obligations or indemnifications contained in the CARAT 200_-_ Certificates, this
Agreement or the CARAT Basic Documents, it being expressly understood that such
CARAT 200_-_ Certificateholder obligations have been made solely by the Trust.
Each CARAT 200_-_ Certificateholder by the acceptance of a CARAT 200_-_
Certificate (or beneficial interest therein) agrees except as expressly provided
in the CARAT Basic Documents, in the event of nonpayment of any amounts with
respect to the CARAT 200_-_ Certificates, it shall have no claim against any of
the foregoing Persons for any deficiency, loss or claim therefrom. In the event
that any of the foregoing covenants of each CARAT 200_-_ Certificateholder and
CARAT 200_-_ Certificate Owner is prohibited by, or declared illegal or
otherwise unenforceable against any such CARAT 200_-_ Certificateholder or CARAT
200_-_ Certificate Owner under applicable law by any court or other authority of
competent jurisdiction, and, as a result, a CARAT 200_-_ Certificateholder or
CARAT 200_-_ 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 CARAT 200_-_ Certificateholder and CARAT 200_-_ 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
27
been expressly granted ("entitled Persons"), including to the payment in full of
all amounts owing to such entitled Persons, and (ii) the covenant set forth in
the preceding clause (i) constitutes a "subordination agreement" within the
meaning of, and subject to, Section 510(a) of the Bankruptcy Code.
Section 9.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 9.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.12 Indemnification by and Reimbursement of the Trust
Administrator. The CARAT Owner Trustee acknowledges and agrees to reimburse (i)
the Trust Administrator and its directors, officers, employees and agents in
accordance with Section 6.03(b) of the Trust Sale and Administration Agreement
and (ii) the Seller and its directors, officers, employees and agents in
accordance with Section 3.04 of the Trust Sale and Administration Agreement. The
CARAT Owner Trustee further acknowledges and accepts the conditions and
limitations with respect to the Trust Administrator's obligation to indemnify,
defend and hold the CARAT Owner Trustee harmless as set forth in Section
6.01(a)(iii) of the Trust Sale and Administration Agreement.
Section 9.13 Effect of Amendment and Restatement. It is the intent of the
parties hereto that this Trust Agreement shall as of ____, 200_, replace in its
entirety the Original Trust Agreement; provided, however, that with respect to
the period of time from ____, 200_ through ____, 200_, the rights and
obligations of the parties shall be governed by the Original Trust Agreement;
and provided, further, that the amendment and restatement of the Original Trust
Agreement shall not affect any of the grants, conveyances or transfers
contemplated by the Original Trust Agreement to have occurred prior to the date
hereof.
Section 9.14 Information to be Provided by the Owner Trustee.
(a) The CARAT Owner Trustee agrees to cooperate in good faith with any
reasonable request by COLT or the Seller for information regarding the CARAT
Owner Trustee that is required in order to enable COLT or the Seller to comply
with the provisions of Items 1117 and 1119 of Regulation AB as it relates to the
CARAT Owner Trustee or to the CARAT Owner Trustee's obligations under this
Agreement.
(b) Except to the extent disclosed by the CARAT Owner Trustee pursuant
to Section 9.14(c) or (d) below, the CARAT Owner Trustee shall be deemed to have
represented to COLT and the Seller on the first day of each Monthly Period with
respect to the prior Monthly Period that, to the best of its knowledge, there
were no legal or governmental proceedings pending (or known to be contemplated)
against ___________________ or any property of
28
____________________ that would be material to any CARAT 200_-_ Noteholder or,
to the extent that the CARAT 200_-_ Certificates are registered under the
Securities Act for public sale, any holder of such CARAT 200_-_ Certificates.
(c) The CARAT Owner Trustee shall, as promptly as practicable
following notice to or discovery by the CARAT Owner Trustee of any changes to
any information regarding the CARAT Owner Trustee as is required for the purpose
of compliance with Item 1117 of Regulation AB, provide to the Seller, in
writing, such updated information.
(d) The CARAT Owner Trustee shall deliver to COLT and the Seller on or
before March 15 of each year, beginning with March 15, 200_, a report of a
representative of the CARAT Owner Trustee with respect to the immediately
preceding calendar year certifying, on behalf of the CARAT Owner Trustee, that
except to the extent otherwise disclosed in writing to COLT and the Seller, to
the best of his or her knowledge, there were no legal or governmental
proceedings pending (or known to be contemplated) against _____________or any
property of ________________ that would be material to any CARAT 200_-_
Noteholder or, to the extent that the CARAT 200_-_ Certificates are registered
under the Securities Act for public sale, any holder of such CARAT 200_-_
Certificates.
(e) The CARAT Owner Trustee shall deliver to COLT and the Seller on or
before March 15 of each year, beginning with March 15, 200_, a report of a
representative of the CARAT Owner Trustee with respect to the immediately
preceding calendar year providing to COLT and the Seller such information
regarding the CARAT Owner Trustee as is required for the purpose of compliance
with Item 1119 of Regulation AB. Such information shall include, at a minimum, a
description of any affiliation between the CARAT Owner Trustee and any of the
following parties to the CARAT 200_ - SN securitization transaction, as such
parties are identified to the CARAT Owner Trustee by COLT and the Seller in
writing in advance of the CARAT 200_ - SN securitization transaction:
(i) the Seller;
(ii) GMAC;
(iii) the Issuer;
(iv) COLT;
(v) COLT LLC;
(vi) the Servicer;
(vii) the Trust Administrator;
(viii) the CARAT Indenture Trustee;
(ix) the COLT Indenture Trustee;
(x) the COLT Owner Trustee;
29
(xi) the Swap Counterparty; and
(xii) any other material transaction party.
In connection with its report regarding the parties listed in clauses (i)
through (xii) above, the CARAT Owner Trustee shall include a description of
whether there is, and if so, the general character of, any business
relationship, agreement, arrangement, transaction or understanding that is
entered into outside the ordinary course of business or is on terms other than
would be obtained in an arm's length transaction with an unrelated third party,
apart from the CARAT 200_ - SN_ securitization transaction, between the CARAT
Owner Trustee and any of the parties listed above that currently exists or that
existed during the two calendar years immediately preceding the date of such
report and that is material to an investor's understanding of the asset backed
securities issued in the CARAT 200_ - SN __ securitization transaction.
Section 9.15 Transfer Restrictions on CARAT 200_-_ Certificates. It is the
intent of the parties hereto that the CARAT 200_-_ Certificates (or an interest
therein) may be acquired by or for the account of Benefit Plan only if (a)(i)
the CARAT 200_-_ Certificates are eligible to be purchased under, and satisfy
all conditions for relief under, one of the underwriter exemptions listed in
footnote 1 of Department of Labor Prohibited Transaction Exemption 2002-41 (67
Fed. Reg. 54487 (August 22, 2002)) or any amendments thereto; and (ii) it is an
"accredited investor" as defined in Rule 501(a)(1) of Regulation D under the
Securities Act, and any holder of the CARAT 200_-_ Certificates that is a
Benefit Plan shall be deemed to have represented and warranted that it is an
"accredited investor;" or (b) it is an insurance company general account that
satisfies the requirements of Section III of Prohibited Transaction Class
Exemption 95-60. Unless the Seller determines that an exemption described in the
preceding sentence is available, by accepting and holding a CARAT 200_-_
Certificate (or interest therein), the holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and, if requested to do
so by the Seller pursuant to Section 3.4(b), the CARAT 200_-_ Certificateholder
shall execute and deliver to the CARAT Owner Trustee an undertaking letter in
the form set forth in Exhibit C.
30
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 CARAT Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CAPITAL AUTO RECEIVABLES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Accepted:
________________, as Paying Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
S-1 CARAT 200_-_ Trust Agreement
EXHIBIT A
FORM OF CARAT 200_-_ CERTIFICATE
NUMBER R- $[_________]% Percentage Interest
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CARAT 200_-_ CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND THE VARIOUS STATE SECURITIES LAWS.
NO TRANSFER OF THIS CARAT 200_-_ CERTIFICATE SHALL BE MADE UNLESS SUCH
TRANSFER IS MADE IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER
THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS AND IS OTHERWISE IN
COMPLIANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT.
THIS CARAT 200_-_ CERTIFICATE (OR AN INTEREST HEREIN) MAY BE ACQUIRED BY OR
FOR THE ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION
3(3) OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF
ERISA, (ii) A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY (EACH, A "BENEFIT PLAN") ONLY IF (A)(i) THIS CARAT 200_-_
CERTIFICATE IS ELIGIBLE TO BE PURCHASED UNDER, AND SATISFIES ALL CONDITIONS
FOR RELIEF UNDER, ONE OF THE UNDERWRITER EXEMPTIONS LISTED IN FOOTNOTE 1 OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION 2002-41 (67 FED. REG.
54487 (AUGUST 22, 2002)), OR ANY AMENDMENTS THERETO; AND (ii) IT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1) OF REGULATION D UNDER
THE ACT, AND ANY HOLDER OF THIS CARAT 200_-_ CERTIFICATE THAT IS A BENEFIT
PLAN SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS AN
"ACCREDITED INVESTOR"; OR (B) IT IS AN INSURANCE COMPANY GENERAL ACCOUNT
THAT SATISFIES THE REQUIREMENTS OF SECTION III OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60.
CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-_
ASSET BACKED CERTIFICATE
A-1 - 1
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes the COLT 200_-_ Secured Notes sold to the
Trust by Capital Auto Receivables, Inc.
(This CARAT 200_-_ 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 CARAT 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 200_-_ (the "Trust") formed by Capital Auto
Receivables, Inc., a Delaware corporation. The percentage interest in the Trust
evidenced by this CARAT 200_-_ Certificate is [_______]%.
The Trust was created pursuant to a trust agreement, dated as of ____,
200_ (as amended and restated as of ____, 200_ and as it may be amended from
time to time, the "Trust Agreement"), between the Seller and ______________, as
owner trustee (the "CARAT 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 CARAT 200_-_ Certificate is one of the duly authorized CARAT
200_-_ Certificates designated as Asset Backed Certificates (the "CARAT 200_-_
Certificates"). This CARAT 200_-_ 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 CARAT 200_-_ 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 May 16, 2005 (each, a "Distribution Date"), to the person in whose
name this CARAT 200_-_ Certificate is registered on the related Record Date (as
defined below), such amount as is provided in the CARAT Basic Documents. The
"Record Date," with respect to any Distribution Date, means the last day of the
preceding Monthly Period.
The distributions in respect of this CARAT 200_-_ 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 CARAT 200_-_ Certificate shall be applied
in respect of this CARAT 200_-_ Certificate.
The holder of this CARAT 200_-_ Certificate acknowledges and agrees
that its rights to receive distributions in respect of this CARAT 200_-_
Certificate are subordinated to the rights of the CARAT 200_-_ Noteholders as
and to the extent described in the Trust Sale and Administration Agreement.
A-1 - 2
It is the intent of the Seller, the CARAT Owner Trustee and the CARAT
200_-_ Certificateholders that, for purposes of federal income, state and local
income and franchise taxes, Michigan single business tax and any other taxes
imposed upon, measured by or based upon gross or net income, the Trust shall be
treated as either (A) a division of the Seller, or any other single Person, and
disregarded as a separate entity, if all CARAT 200_-_ Certificates are owned
solely by the Seller or by such single Person, or (B) a partnership if the CARAT
200_-_ Certificates are owned by more than one Person. Except as otherwise
required by appropriate taxing authorities, the Seller and the other CARAT
200_-_ Certificateholders by acceptance of a CARAT 200_-_ Certificate agree to
treat, and to take no action inconsistent with the treatment of, the CARAT
200_-_ Certificates for such tax purposes as interests in such a disregarded
entity or partnership as described in the previous sentence.
This CARAT 200_-_ Certificate (or an interest therein) may be acquired
by or for the account of a Benefit Plan only if (a)(i) this CARAT 200_-_
Certificate is eligible to be purchased under, and satisfies all conditions for
relief under, one of the underwriter exemptions listed in footnote 1 of
Department of Labor Prohibited Transaction Exemption 2002-41 (67 Fed. Reg. 54487
(August 22, 2002)) or any amendments thereto; and (ii) it is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D under the Securities Act,
and any holder of this CARAT 200_-_ Certificate that is a Benefit Plan shall be
deemed to have represented and warranted that it is an "accredited investor"; or
(b) it is an insurance company general account that satisfies the requirements
of Section III of Prohibited Transaction Class Exemption 95-60. Unless the
Seller determines the exemption in clause (a) or (b) is available, by accepting
and holding this CARAT 200_-_ Certificate (or interest therein), the holder
hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and, if requested to do so by the Seller pursuant to Section
3.4(b), shall execute and deliver to the CARAT Owner Trustee an undertaking
letter in the form set forth in Exhibit C to the Trust Agreement.
Each CARAT 200_-_ Certificateholder or CARAT 200_-_ Certificate Owner
by its acceptance of a CARAT 200_-_ Certificate (or an interest therein)
covenants and agrees that such CARAT 200_-_ Certificateholder or CARAT 200_-_
Certificate Owner 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 CARAT Owner Trustee to invoke the process of any court
or governmental authority for the purpose of commencing or sustaining a case
against the Seller or the CARAT Owner Trustee under any federal or state
bankruptcy, insolvency, reorganization or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Seller or the CARAT Owner Trustee or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller
or the CARAT Owner Trustee.
Except as otherwise provided in the Trust Agreement, distributions on
this CARAT 200_-_ Certificate shall be made as provided in the Trust Agreement
by the CARAT Owner Trustee by wire transfer or check mailed to the CARAT 200_-_
Certificateholder of record in the CARAT 200_-_ Certificate Register without the
presentation or surrender of this CARAT 200_-_ Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this CARAT 200_-_
Certificate shall be made after due notice by the CARAT Owner Trustee of the
pendency
A-1 - 3
of such distribution and only upon presentation and surrender of this CARAT
200_-_ Certificate at the office maintained for such purpose by the CARAT Owner
Trustee in _____________k.
Reference is hereby made to the further provisions of this CARAT
200_-_ 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 CARAT Owner Trustee by manual
signature, this CARAT 200_-_ Certificate shall not entitle the holder hereof to
any benefit under the Trust Agreement or the Trust Sale and Administration
Agreement or be valid for any purpose.
THIS CARAT 200_-_ CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-1 - 4
IN WITNESS WHEREOF, the CARAT Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this CARAT 200_-_ Certificate to
be duly executed.
Dated: _________________, 2005 CAPITAL AUTO RECEIVABLES ASSET
TRUST 200_-_
______________, not in its individual
capacity but solely as Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CARAT 200_-_ Certificates referred to in the
within-mentioned Trust Agreement.
______________, not in its individual ______________, not in its individual
capacity but solely as but CARAT but capacity solely as CARAT Owner
Owner Trustee Trustee,
by
------------------------------------,
as Authenticating Agent
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
A-1-5
REVERSE OF CERTIFICATE
The CARAT 200_-_ Certificates do not represent an obligation of, or an
interest in, the Seller, the Trust Administrator, General Motors Corporation,
the CARAT Indenture Trustee, the CARAT 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 CARAT 200_-_ 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 CARAT
200_-_ Secured Notes (and certain other amounts), all as more specifically set
forth herein and in the Basic Documents. A copy of each of the CARAT Basic
Documents may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
any CARAT 200_-_ Certificateholder upon written request. In the event of any
conflict between the terms of this CARAT 200_-_ Certificate and the terms of the
Basic Documents, the terms of the Basic Documents shall govern.
The Trust Agreement permits, with certain exceptions provided therein,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the CARAT 200_-_ Certificateholders under the Trust
Agreement at any time by the Seller and the CARAT Owner Trustee with the consent
of the Holders of the CARAT 200_-_ Notes evidencing not less than a majority of
the Outstanding Amount of the Controlling Class as of the close of the preceding
Distribution Date and, if any Person other than the Seller or an Affiliate of
the Seller holds any CARAT 200_-_ Certificates, the consent of CARAT 200_-_
Certificateholders whose CARAT 200_-_ 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 CARAT 200_-_ Certificate shall be
conclusive and binding on such Holder and on all future Holders of this CARAT
200_-_ Certificate and of any CARAT 200_-_ 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 CARAT 200_-_ Certificate. The Trust Agreement also
permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the CARAT 200_-_ Certificates or the CARAT 200_-_ Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this CARAT 200_-_ Certificate is registerable
in the CARAT 200_-_ Certificate Register upon surrender of this CARAT 200_-_
Certificate for registration of transfer at the offices or agencies of the CARAT
200_-_ Certificate Registrar maintained by the CARAT Owner Trustee in the City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the CARAT Owner Trustee and the CARAT 200_-_ Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new CARAT 200_-_ Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial CARAT 200_-_
Certificate Registrar appointed under the Trust Agreement is ______________,
____, ____.
The CARAT 200_-_ Certificates are issuable only as registered CARAT
200_-_ Certificates without coupons in denominations of $20,000 or integral
multiples of $1,000 in excess thereof; provided, however, that one CARAT 200_-_
Certificate may be issued in a
A-1 - 6
denomination that includes any residual amount. As provided in the Trust
Agreement and subject to certain limitations therein set forth, CARAT 200_-_
Certificates are exchangeable for new CARAT 200_-_ Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same; provided, however, that no CARAT 200_-_
Certificate may be subdivided such that the denomination of any resulting CARAT
200_-_ Certificate is less than $20,000. No service charge shall be made for any
such registration of transfer or exchange, but the CARAT Owner Trustee or the
CARAT 200_-_ Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The CARAT Owner Trustee, the CARAT 200_-_ Certificate Registrar and
any agent of the CARAT Owner Trustee or the CARAT 200_-_ Certificate Registrar
may treat the Person in whose name this CARAT 200_-_ Certificate is registered
as the owner hereof for all purposes, and none of the CARAT Owner Trustee, the
CARAT 200_-_ Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate in accordance with Article VII of
the Trust Agreement.
A-1 - 7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
______________________________________________________________________
the within CARAT 200_-_ Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_________________________________________________________ Attorney to transfer
said CARAT 200_-_ Certificate on the books of the CARAT 200_-_ 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 CARAT 200_-_ 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-1 - 8
EXHIBIT B
CARAT 200_-_ CERTIFICATE OF
CAPITAL AUTO RECEIVABLES ASSET TRUST 200_-_
THIS CARAT 200_-_ Certificate of Capital Auto Receivables Asset Trust
200_-_ (the "Trust") is being duly executed and filed by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is Capital Auto
Receivables Asset Trust 200_-_.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are ______________, _________, ________,
________, ________, Delaware _______.
3. This CARAT 200_-_ Certificate of Trust shall be effective on
[__________], 2005.
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 CARAT Owner
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT C
FORM OF UNDERTAKING LETTER
(to be provided)